*

~ Minute Orger Form (06/97)

United States District Court, Northern District of Mlinois

A)

Name of Assigned Judge James B. Moran Sitting Judge if Other
or Magistrate Judge than Assigned Judge
CASE NUMBER 03 C2012 DATE 6/30/2003
CASE U.S.A. ex rel: Fred Ward vs. Blair Leibach
TITLE

[ln the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature

of the motion being presented.]

ay

MOTION:
Memorandum Opinion and Order
DOCKET ENTRY:
qd) o Filed motion of [ use listing in “Motion” box above.]
(2) oO Brief in support of motion due
(3) Oo Answer brief to motion due . Reply to answer briefdue___.
(4) im Ruling/Hearingon__setfor___at
(5) oO Status hearing[held/continued to] [set for/re-set for]on__—_—setfor__—_at
(6) oO Pretrial conference[held/continued to] [set for/re-set for]on___—setfor_———sat__.
(7) Oo Trial[set for/re-set for}on__—_at
® a [Bench/Jury trial] [Hearing] held/continued to___at
(9) a This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OOFRCP4(m) OLocal Rule 41.1 CFRCP41(a)(1) CO FRCP4I(a)(2).
do) of [Other docket entry] Enter Memorandum Opinion and Order. Petitioner now seeks a certificate of

appealability pursuant to F.R.A.P. 22(b) For the following reasons we decline to issue the certificate.

a [For further detail see order attached to the original minute order.]

No notices required, advised in open court.
No notices required.

Notices mailed by judge’s staff.

Notified counsel by telephone.
a | Docketing to mail notices, .
Mail AO 450 form. L8N03 13! 11SI0°S'N
Copy to judge/magistrate judge. MES
courtroom 92:1 Rd SERIF eu
WAH deputy’s
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central Clerk’s Office



IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
USA ex rel., FRED WARD, )
Petitioner, }
vs. } No. 03 C 2012
BLAIR LEIBACH, }
Respondent. }

MEMORANDUM OPINION AND ORDER

Petitioner Fred Ward brought this action seeking a writ of habeas corpus alleging that
his constitutional rights were violated by his conviction and sentencing. We denied the petition
ina Memorandum Opinion and Order dated June 10, 2003. Petitioner now seeks a certificate
of appealability pursuant to F.R.A.P. 22(b). For the following reasons we decline to issue the
certificate.

A certificate of appealability may issue only if petitioner has made a substantial
showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). When, as is the case
here, we have denied a petition based on procedural grounds without reaching the underlying
claim, a certificate should issue if “the prisoner shows, at least, that jurists of reason would
find it debatable whether the district court was correct in its procedural ruling. This
construction gives meaning to Congress’ requirement that a prisoner demonstrate substantial
underlying constitutional claims.” Stack v. McDaniel, 529 U.S. 473, 484 (2000).

Petitioner’s claims were clearly procedurally defaulted. His petition contained three

issues, none of which was previously presented to the state courts, meaning that we do not have


No. 03 C 2012 Page 2

jurisdiction. Coleman v. Thompson, 501 U.S. 722, 729 (1991). He also does not claim that a
failure to consider these issues will result in a miscarriage of justice, because he does not claim
actual innocence. Schlup v. Delo, 513 U.S. 298, 327 (1995).

CONCLUSION

For the foregoing reasons, we decline to issue a certificate of appealability.

Jone B Yow

i JAMES B. MORAN

ior Judge, U. S. District Court
\ nx 38,2003.