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Altman v. McCaughtry

United States District Court, E.D. Wisconsin

February 16, 2017

LEWIS ALTMAN, JR., Petitioner,
v.
GARY McCAUGHTRY, Respondent.

          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.

          C.N. CLEVERT, JR. U.S. DISTRICT JUDGE.

         At the 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, stating:

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.

(Doc. 25.)

         Within 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 [18] 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.)

         Altman appealed the court's two orders. He later filed a motion for leave to appeal without prepayment of the fees.

         CERTIFICATE OF APPEALABILITY

         Before 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).

         If the 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).

         A 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).

         The 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.

         When a 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 ...


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