Newman v. Fluke et al

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
CHARLES WESTLEY NEWMAN,
Petitioner,
vs.
BRENT FLUKE, Warden of South
Dakota State Penitentiary; GORDON
SWANSON, South Dakota Board of
Pardons and Paroles - Non-Compliance
Panel; MYRON RAU, South Dakota
Board of Pardons and Paroles - Non-
Compliance Panel; THE ATTORNEY
GENERAL OF THE STATE OF SOUTH
DAKOTA,
Respondents.
4:22-CV-04158-KES
ORDER DENYING MOTION FOR A
CERTIFICATE OF APPEALABILITY
Petitioner, Charles Westley Newman, filed a petition for writ of habeas
corpus under 28 U.S.C. § 2254. Docket 1. Magistrate Judge Veronica L. Duffy
issued an order to show cause and for service, requiring both parties to show
cause as to why Newman’s petition should not be dismissed without prejudice
as not properly exhausted and as procedurally defaulted. Docket 4. Newman
has appealed that order. Docket 10.
This court construes Newman’s appeal as seeking a certificate of
appealability. See Docket 11. But a certificate of appealability would only be
necessary to appeal a “final order in a habeas corpus proceeding in which the
detention complained of arises out of process issued by a State court[.]” 28
U.S.C. § 2253(c)(1)(A). The order that Newman appeals is not a final order. See
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Docket 4. Thus, Newman’s motion for a certificate of appealability (Docket 11)
is denied.
IT IS ORDERED:
1. 	That Newman’s motion for a certificate of appealability (Docket 11)
is denied.
Dated December 9, 2022.
BY THE COURT:
/s/ Karen E. Schreier
KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE
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