Opinion
No. C02-185-LRR.
March 22, 2005
ORDER
Before the court is Petitioner Brian R. Sillick's Application for a Certificate of Appealability (docket no. 25), which was filed on March 15, 2005. Petitioner seeks an appeal from the court's February 25, 2005 Order denying his 28 U.S.C. § 2254 motion.
A district court possesses the authority to issue certificates of appealability under 28 U.S.C. § 2253(c) and Fed.R.App.P. 22(b). See Tiedeman v. Benson, 122 F.3d 518, 522 (8th Cir. 1997). Under 28 U.S.C. § 2253(c)(2), a certificate of appealability may only issue if a defendant has made a substantial showing of the denial of a constitutional right. See Miller-El v. Cockrell, 537 U.S. 322, 336 (2003); Garrett v. U.S., 211 F.3d 1075, 1076-77 (8th Cir. 2000); Carter v. Hopkins, 151 F.3d 872, 873-74 (8th Cir. 1998); Cox v. Norris, 133 F.3d 565, 569 (8th Cir. 1997); Tiedeman, 122 F.3d at 523. To make such a showing, the issues must be debatable among reasonable jurists, a court could resolve the issues differently, or the issues deserve further proceedings. Cox, 133 F.3d at 569 (citing Flieger v. Delo, 16 F.3d 878, 882-83 (8th Cir. 1994)). Moreover, "`where a district court has rejected the constitutional claims on the merits, the showing required to satisfy [28 U.S.C.] § 2253(c) is straightforward: the [defendant] must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong.'" Miller-El, 537 U.S. at 338 (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)).
For the reasons stated in the court's February 25, 2005 Order, Petitioner fails to meet the standards set forth for the issuance of a certificate of appealability. Having thoroughly reviewed the record in this case, the court finds Petitioner failed to make the requisite "substantial showing" with respect to all of the claims he raised in his 28 U.S.C. § 2254 motion. See 28 U.S.C. § 2253(c)(2); Fed.R.App.P. 22(b). Specifically, the court disagrees with Petitioner's interpretation of Bokhoven v. Klinker, 474 N.W.2d 553 (Iowa 1991) that he exhausted his remedies on the "ineffective assistance of counsel under the totality of the circumstances" issue because the Iowa Supreme Court has the discretion to address any issues raised on appeal to the Iowa Court of Appeals but not specifically set forth in his application for further review. Merely because the Iowa Supreme Court could have chosen to review any issues raised in Petitioner's brief before the Iowa Court of Appeals does not mean he raised the issue at every level on direct appeal in order to avoid a procedural bar of the issue on collateral attack. Had Petitioner raised the issue in his application for further review, the Iowa Supreme Court would have had to address the issue in some way. Only under those circumstances, that is, full exhaustion of his remedies, could this court weigh in on the issue. Petitioner, however, did not raise the issue and his argument that the Iowa Supreme Court "could have" addressed it is fundamentally flawed. Pursuant to 28 U.S.C. § 2254(b)(1)(A), this court is without jurisdiction to address issues that could have been addressed by the Iowa Supreme Court in its discretion but which were not raised by Petitioner. Because he did not present questions of substance for appellate review, Petitioner's request for a certificate of appealability shall be denied.
If Petitioner desires further review of his 28 U.S.C. § 2254 motion, he may request issuance of the certificate of appealability by a circuit judge of the United States Court of Appeals for the Eighth Circuit in accordance with Tiedeman, 122 F.3d at 520-22.
IT IS THEREFORE ORDERED Petitioner's Application for a Certificate of Appealability (docket no. 25) is DENIED.