The opinion of the court was delivered by: Karen E. Schreier Chief Judge
Petitioner, Lance George Owen, is an inmate at the South Dakota State Penitentiary. This court denied his pro se petition for writ of habeas corpus on July 30, 2010. He now requests a certificate of appealability and leave to proceed in forma pauperis on appeal. He also moves to dismiss the indictment against him, seeks an evidentiary hearing, asks that the court appoint counsel to assist him in his appeal, and requests an extension of time for the filing of his objections. In addition, Owen seeks two injunctions, one directing that prison officials make legal copies for him and provide him with undelayed access to a notary public and the prison law library, and another asking this court to order an investigation into a threatening letter he received after filing his appeal.
I. Certificate of Appealability
Owen may not appeal the denial of his petition under 28 U.S.C. § 2254 unless he receives a certificate of appealability. 28 U.S.C. § 2253(c)(1). Owen must make "a substantial showing of the denial of a constitutional right" to receive a certificate of appealability. Id. § 2253(c)(2). "A substantial showing is a showing that issues are debatable among reasonable jurists, a court could resolve the issues differently, or the issues deserve further proceedings." Bell v. Norris, 586 F.3d 624, 632 n.3 (8th Cir. 2009) (citing Cox v. Norris, 133 F.3d 565, 569 (8th Cir. 1997)). Owen seeks a certificate of appealability as to seven claims, which can be condensed into three separate issues: the denial of an evidentiary hearing on his habeas claim; the determination that his unlawful imprisonment claim is procedurally defaulted; and the finding that state court jurisdiction was proper.
A. Denial of Evidentiary Hearing
Owen was denied an evidentiary hearing because he failed to make the requisite showing that he was entitled to a hearing in federal court. A § 2254 petitioner is not entitled to an evidentiary hearing unless he shows that the claim relies on either "a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable," or "a factual predicate that could not have been previously discovered through the exercise of due diligence." 28 U.S.C. § 2254(e)(2)(i)-(ii). These restrictions are "mandatory" and bar evidentiary hearings in most § 2254 proceedings. Williams v. Norris, 576 F.3d 850, 859 (8th Cir. 2009). Section 2254(e)(2) prevents an evidentiary hearing unless the petitioner "was unable to develop his claim in state court despite diligent effort." Williams, 576 F.3d at 860 (citing Williams v. Taylor, 529 U.S. 420, 437 (2000)).
In this case, Owen did not make either showing. Owen was not claiming relief under a new rule of constitutional law. And Owen was granted a state court evidentiary hearing on the jurisdiction issue, which enabled him to develop his claim. Owen did not seek a state court hearing on the unlawful imprisonment issue or present the issue on direct appeal. But there was "no state court ruling or other state-created impediment that prevented [Owen] from developing the basis" of his unlawful imprisonment claim. Id. at 862. Thus, § 2254(e)(2) prohibited an evidentiary hearing in federal court. Thus, Owen is not entitled to a certificate of appealability on this issue.
B. Procedural Default of Unlawful Imprisonment Claim
Owen's unlawful imprisonment claim was dismissed because he failed to raise the issue during his direct appeal. Owen did not demonstrate cause, actual prejudice, or that a miscarriage of justice would occur because he was actually innocent. See Coleman v. Thompson, 501 U.S. 722, 750 (1991) ("In all cases in which a state prisoner has defaulted his federal claims in state court pursuant to . . . [a] state procedural rule, federal habeas review of the claim is barred unless the prisoner can demonstrate cause for the default and actual prejudice . . . or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice."). Thus, Owen's procedural default of his unlawful imprisonment claim is not excused. Id. See also Docket 17, Order Denying Petition for Writ of Habeas Corpus at 4 (citing Bousley v. United States, 523 U.S. 614, 622 (1998)).
"Where a plain procedural bar is present and the district court is correct to invoke it to dispose of the case," no certificate of appealability should issue. Slack v. McDaniel, 529 U.S. 473, 484 (2000). Accord Langley v. Norris, 465 F.3d 861, 863 (8th Cir. 2006) (holding it was error for a district court to grant a certificate of appealability where issue was procedurally defaulted and petitioner did not argue that there was cause and prejudice to excuse his procedural default). Because Owen's unlawful imprisonment claim is procedurally defaulted, he is not entitled to a certificate of appealability on this issue.
C. State Court Jurisdiction
Owen also seeks a certificate of appealability regarding this court's conclusion that the South Dakota state court had proper jurisdiction over his crimes. Owen asserts that an Indian housing project in Peever, South Dakota, the location of the crimes, should be classified as a dependent Indian community under 18 U.S.C. § 1151. Under Owen's view, the housing project would qualify as Indian country, thereby depriving the state of criminal jurisdiction.
This court found that the Peever housing project did not qualify as a dependent Indian community under the tests set forth in United States v. South Dakota, 665 F.2d 837 (8th Cir. 1981) and Alaska v. Native Village of Venetie Tribal Government, 522 U.S. 520 (1998). Docket 17. Under Venetie, land must possess two essential characteristics to be classified as a dependent Indian community. Id. at 527. First, the land must be "set aside by the federal government for the use of the Indians as Indian land." Id. Second, the land must be under "federal superintendence." Id. Because the housing project land was leased to the Sisseton-Wahpeton tribe by the town of Peever, this court concluded the federal set-aside requirement was not met. Docket 17 at 7-8. Thus, the housing project could not be considered a dependent Indian community.
This conclusion may be "debatable by reasonable jurists." Bell, 586 F.3d at 632 n.3. While the South Dakota Supreme Court also concluded that the housing project did not qualify as a dependent Indian community in State v. Owen, 2007 SD 21, 729 N.W.2d 356, it is not settled law in the Eighth Circuit. The Court of Appeals has not addressed this issue. It is possible the Eighth Circuit could reach a different conclusion and determine that the Peever Housing ...