Filed: Dec. 16, 2015
Latest Update: Dec. 16, 2015
Summary: ORDER DENYING CERTIFICATE OF APPEALABILITY CLAUDIA WILKEN , District Judge . On October 15, 2012, Garland Callum entered a guilty plea pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C) to one count of possession of oxycodone with intent to distribute and one count of possession of device-making equipment. On February 27, 2013, the Court sentenced Mr. Callum to 108 months of imprisonment, to be followed by a term of three years of supervised release. On August 7, 2014, the Court iss
Summary: ORDER DENYING CERTIFICATE OF APPEALABILITY CLAUDIA WILKEN , District Judge . On October 15, 2012, Garland Callum entered a guilty plea pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C) to one count of possession of oxycodone with intent to distribute and one count of possession of device-making equipment. On February 27, 2013, the Court sentenced Mr. Callum to 108 months of imprisonment, to be followed by a term of three years of supervised release. On August 7, 2014, the Court issu..
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ORDER DENYING CERTIFICATE OF APPEALABILITY
CLAUDIA WILKEN, District Judge.
On October 15, 2012, Garland Callum entered a guilty plea pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C) to one count of possession of oxycodone with intent to distribute and one count of possession of device-making equipment. On February 27, 2013, the Court sentenced Mr. Callum to 108 months of imprisonment, to be followed by a term of three years of supervised release. On August 7, 2014, the Court issued an order denying Mr. Callum's motion, under 28 U.S.C. § 2255, to vacate, set aside or correct his sentence. On September 4, 2014, Mr. Callum filed a motion for reconsideration of the Court's order pursuant to Rule 59(e), Federal Rules of Civil Procedure, which the Court denied on September 26, 2014. Mr. Callum filed a notice of appeal on November 19, 2014. This Court denied a certificate of appealability on November 26, 2014. On June 12, 2015, the Ninth Circuit also denied Mr. Callum's request for a certificate of appealability.
In July 2015, Mr. Callum filed a motion for writ of error coram nobis and, in August 2015, Mr. Callum filed a motion pursuant to 29 U.S.C. § 2461, challenging the forfeiture proceedings in his underlying case. The Court denied both of those motions and Mr. Callum filed a notice of appeal on November 6, 2015. The Ninth Circuit has now remanded the case to this Court to grant or deny a certificate of appealability.
To the extent Mr. Callum's July 2015 motions are construed as successive § 2255 motions, his right to appeal the denial of those motions is governed by by 28 U.S.C. § 2253(c), which states,
(1) Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from—
(A) the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State court; or
(B) the final order in a proceeding under section 2255.
(2) A certificate of appealability may issue under paragraph (1) only if the applicant has made a substantial showing of the denial of a constitutional right.
(3) The certificate of appealability under paragraph (1) shall indicate which specific issue or issues satisfy the showing required by paragraph (2).
28 U.S.C. § 2253(c)(1)-(3). The Ninth Circuit has interpreted the phrase "circuit justice or judge" to include district court judges. United States v. Asrar, 116 F.3d 1268, 1269-70 (9th Cir. 1997). A certificate of appealability should be granted "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2).
The Court certifies in accordance with 28 U.S.C. § 2253 that, for the reasons set forth in the Court's October 28, 2015 order, none of the issues raised in the motion involves a substantial showing of the denial of a constitutional right. The certificate of appealability is denied.
IT IS SO ORDERED.
