Filed: Nov. 27, 2017
Latest Update: Nov. 27, 2017
Summary: ORDER DENYING THE 2255 MOTION AND DENYING A CERTIFICATE OF APPEALABILITY ROBERT L. HINKLE , District Judge . The defendant has moved under 28 U.S.C. 2255 for relief from his judgment of conviction. The motion is before the court on the magistrate judge's report and recommendation, ECF No. 910. The defendant was granted a long extension of time to file objections because he was being moved to a different facility. Now, more than three months after entry of the report and recommendation
Summary: ORDER DENYING THE 2255 MOTION AND DENYING A CERTIFICATE OF APPEALABILITY ROBERT L. HINKLE , District Judge . The defendant has moved under 28 U.S.C. 2255 for relief from his judgment of conviction. The motion is before the court on the magistrate judge's report and recommendation, ECF No. 910. The defendant was granted a long extension of time to file objections because he was being moved to a different facility. Now, more than three months after entry of the report and recommendation a..
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ORDER DENYING THE § 2255 MOTION AND DENYING A CERTIFICATE OF APPEALABILITY
ROBERT L. HINKLE, District Judge.
The defendant has moved under 28 U.S.C. § 2255 for relief from his judgment of conviction. The motion is before the court on the magistrate judge's report and recommendation, ECF No. 910. The defendant was granted a long extension of time to file objections because he was being moved to a different facility. Now, more than three months after entry of the report and recommendation and nearly three months after the record makes clear the defendant received a copy, see ECF No. 914, the defendant still has not filed any objections.
This order accepts the report and recommendation, adopts it as the court's opinion, and denies the § 2255 motion. If, as seems unlikely, the defendant had a basis for objections to the report and recommendation, he may file a timely motion to alter or amend the judgment that will be entered based on this order.
A defendant may appeal the denial of a § 2255 motion only if the district court or court of appeals issues a certificate of appealability. Under 28 U.S.C. § 2253(c)(2), a certificate of appealability may issue "only if the applicant has made a substantial showing of the denial of a constitutional right." Miller-El v. Cockrell, 537 U.S. 322, 335-38 (2003); Slack v. McDaniel, 529 U.S. 473, 483-84 (2000); Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983); see also Williams v. Taylor, 529 U.S. 362, 402-13 (2000) (setting out the standards applicable to a § 2254 petition on the merits). As the Court said in Slack:
To obtain a COA under § 2253(c), a habeas prisoner must make a substantial showing of the denial of a constitutional right, a demonstration that, under Barefoot, includes showing that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were "adequate to deserve encouragement to proceed further."
529 U.S. at 483-84 (quoting Barefoot, 463 U.S. at 893 n.4). Further, in order to obtain a certificate of appealability when dismissal is based on procedural grounds, a petitioner must show, "at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling." Id. at 484.
The defendant has not made the required showing. This order thus denies a certificate of appealability.
IT IS ORDERED:
1. The defendant's motion for relief under 28 U.S.C. § 2255, ECF No. 848, is denied.
2. The clerk must enter judgment.
3. A certificate of appealability is denied.
SO ORDERED.
