United States District Court, E.D. Wisconsin
ORDER DENYING CERTIFICATE OF APPEALABILITY,
CONFIRMING DENIAL OF MOTION FOR LEAVE TO PROCEED WITHOUT
PREPAYMENT OF FEES, AND CERTIFYING THAT APPEAL IS NOT TAKEN
IN GOOD FAITH.
CLEVERT, JR. U.S. DISTRICT JUDGE.
end of 1998, this court dismissed Lewis Altman, Jr.'s
habeas case at his request and entered final judgment.
Altman's early 1999 motion to alter or amend the judgment
and 2003 motion to reopen the case were thereafter denied.
Then, over seventeen years after entry of judgment, in June
2016 Altman asked the court to review his case and excuse any
procedural default. Altman's motion discussed the merits
of his ineffective-assistance-of-counsel claim and referred
to two Supreme Court cases, Martinez v. Ryan, 132
S.Ct. 1309 (2012), and Trevino v. Thaler, 133 S.Ct.
1911 (2013), concerning the ability of a habeas petitioner to
establish cause for a procedural default through the
ineffective assistance of counsel in collateral proceedings.
The court denied the motion for review on October 18, 2016,
Altman's case was dismissed almost twenty years ago. Not
only does there appear to be no legal basis for reopening his
case under Martinez and Trevino, but the
court has twice denied his requests to reopen. Moreover,
Altman's lengthy delay cannot be ignored. This case
terminated long ago and should remain closed.
two weeks of that denial, Altman filed a motion for
reconsideration, contending that the court failed to apply
the correct principles from Martinez,
Trevino, and a Ninth Circuit decision and failed to
address the contents of his “Martinez motion.”
The motion for reconsideration was denied on November 17,
2016. The court remarked:
No discussion of the holdings of Martinez and
Trevino is required here. The first issue is whether
this case, dismissed eighteen years ago, should be
reopened-not whether there are legal arguments that
the court could consider if the case were reopened.
As stated in this court's October  order,
Martinez and Trevino have nothing to say
regarding whether an old habeas case should be reopened.
Moreover, for valid reasons this court has twice denied
Altman's requests to reopen and finality is important in
this habeas context.
(Doc. 27 at 1-2.)
appealed the court's two orders. He later filed a motion
for leave to appeal without prepayment of the fees.
a habeas petitioner may appeal, he must obtain a certificate
of appealability. See 28 U.S.C. § 2253(c); Fed.
R. App. P. 22(b); Miller-El v. Cockrell, 537 U.S.
322, 327, 335-36 (2003). The requirement of a certificate of
appealability applies not only regarding final judgments on
the merits but also regarding denials of motions under
Fed.R.Civ.P. 60(b) and dismissals of unauthorized successive
attacks. West v. Schneiter, 485 F.3d 393 (7th Cir.
2007); Sveum v. Smith, 403 F.3d 447 (7th Cir. 2005).
court issues a certificate of appealability it must indicate
on which specific issue or issues the petitioner has
satisfied the “substantial showing” requirement.
28 U.S.C. § 2253(c)(3); Davis v. Borgen, 349
F.3d 1027, 1028, 1029 (7th Cir. 2003). If the court denies
the request for a certificate of appealability, it must state
its reasons. Fed. R. App. P. 22(b)(1).
certificate of appealability issues only if the petitioner
makes a “substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2). A
petitioner makes a “substantial showing” by
demonstrating that “jurists of reason could disagree
with the district court's resolution of his
constitutional claims or that jurists could conclude the
issues presented are adequate to deserve encouragement to
proceed further.” Miller-El, 537 U.S. at 327;
accord Slack v. McDaniel, 529 U.S. 473, 484 (2000).
certificate of appealability determination is not a second
assessment of the merits. See Miller-El, 537 U.S. at
327, 336. Instead, the determination requires only a
threshold inquiry into the debatability of the district
court's decision. Id. at 336. The petitioner
need not demonstrate that the appeal will succeed.
Id. at 337. A claim may be debatable even though
every jurist, after full consideration of the merits of the
case, would decide against the petitioner. Id. at
338; see also Davis, 349 F.3d at 1028
(“[C]ertificates properly issue in many cases in which
the prisoner will fail on full merits review.”).
“The question is the debatability of the underlying
constitutional claim, not the resolution of that
debate.” Miller-El, 537 at 342.
district court has rejected a petitioner's constitutional
claims on the merits, “the showing required to satisfy
§ 2253(c) is straightforward: The petitioner must
demonstrate that reasonable jurists would find the district
court's assessment of the constitutional claims debatable
or wrong.” Slack, 529 U.S. at 484. When a
district court dismisses a habeas petition based on
procedural grounds without reaching the underlying
constitutional claims, a certificate of appealability
“should issue when the prisoner shows, at least, that
jurists of reason would find it debatable whether the
petition states a valid claim of the denial of a