Pieper v. Jeffreys

Opinion

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA

JOHN PIEPER,

Petitioner, 8:23CV9

vs. MEMORANDUM AND ORDER ROB JEFFREYS,

Respondent.

The matter is before this Court on remand from the Eighth Circuit Court of Appeals, seeking a determination of whether this Court should issue a certificate of appealability. Filing No. 31. For the reasons set forth below this Court finds that no certificate of appealability shall be issued. A petitioner cannot appeal an adverse ruling on a petition for writ of habeas corpus under § 2254 unless granted a certificate of appealability. 28 U.S.C. § 2253(c)(1); Fed. R. App. P. 22(b)(1). A certificate of appealability cannot be granted unless the petitioner “has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). The standards for certificates (1) where the district court reaches the merits or (2) where the district court rules on procedural grounds are set forth in Slack v. McDaniel, 529 U.S. 473, 484-85 (2000). In this case, the Court has applied the appropriate standard and determined that Petitioner is not entitled to a certificate of appealability and specifically finds that a certificate of appealability is not appropriate because Petitioner is trying to appeal from a non-final order. See Filing Nos. 23; 25. Accordingly, the Court will not issue a certificate of appealability in this case.

Dated this 16th day of November, 2023.

BY THE COURT:

Joseph F. Bataillon Senior United States District Court