Filed: Oct. 26, 2015
Latest Update: Oct. 26, 2015
Summary: ORDER JOSEPH F. BATAILLON , Senior District Judge . This matter is before the Court on defendant's motion to appeal, Filing No. 246, this Court's order, Filing No. 245, denying his motion for relief pursuant to 28 U.S.C. 2255, Filing No. 243. The court denied this motion on the basis that it constituted a successive petition, and that on initial review, defendant was not entitled to relief. Before the defendant may appeal the denial of his 2255 motion, a "Certificate of Appealability"
Summary: ORDER JOSEPH F. BATAILLON , Senior District Judge . This matter is before the Court on defendant's motion to appeal, Filing No. 246, this Court's order, Filing No. 245, denying his motion for relief pursuant to 28 U.S.C. 2255, Filing No. 243. The court denied this motion on the basis that it constituted a successive petition, and that on initial review, defendant was not entitled to relief. Before the defendant may appeal the denial of his 2255 motion, a "Certificate of Appealability" m..
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ORDER
JOSEPH F. BATAILLON, Senior District Judge.
This matter is before the Court on defendant's motion to appeal, Filing No. 246, this Court's order, Filing No. 245, denying his motion for relief pursuant to 28 U.S.C. § 2255, Filing No. 243. The court denied this motion on the basis that it constituted a successive petition, and that on initial review, defendant was not entitled to relief.
Before the defendant may appeal the denial of his § 2255 motion, a "Certificate of Appealability" must issue. Pursuant to the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), the right to appeal the denial of a § 2255 motion is governed by the certificate of appealability requirements of 28 U.S.C. § 2253(c). 28 U.S.C. § 2253(c)(2) provides that a certificate of appealability may issue only if the applicant has made a substantial showing of the denial of a constitutional right:
(c)(1) Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from—
. . . .
(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).
A "substantial showing of the denial of a federal right" requires a demonstration "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." Slack v. McDaniel, 529 U.S. 473, 484 (2000). In contrast, if the district court denies a § 2255 motion on procedural grounds without reaching the underlying constitutional claims on the merits, a certificate of appealability should issue under 28 U.S.C. § 2253(c) when the defendant shows, 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 would find it debatable whether the district court was correct in its procedural ruling. Id.
For the reasons set forth in the Memorandum and Order denying the defendant's § 2255 motion (Filing No. 245), I conclude that the defendant has not made a substantial showing of the denial of a constitutional right and has not shown that this court's order was debatable or incorrect, as required by 28 U.S.C. § 2253(c). Accordingly, a Certificate of Appealability is denied. However, Fed. R. App. P. 22(b) permits the defendant to request a Certificate of Appealability from the Court of Appeals.
Therefore, it is ordered that defendant's notice of appeal, Filing No. 246, is denied, defendant may request a Certificate of Appealability from the Eighth Circuit Court of Appeals.
