Filed: Jul. 13, 2017
Latest Update: Jul. 13, 2017
Summary: MEMORANDUM OPINION AND ORDER DONALD C. NUGENT , District Judge . This Court denied Mr. Johnson's Motion for Relief under 28 U.S.C. 2255, and his Motion to Hold in Abeyance Pending Decision, (ECF #51, 60), on March 17, 2017. (ECF #61). The Court ordered at that time that the case be dismissed with prejudice, but neglected to include a Certificate of Appealability. CERTIFICATE OF APPEALABILITY Pursuant to 28 U.S.C. 2253, the Court must determine whether to grant a certificate of appeala
Summary: MEMORANDUM OPINION AND ORDER DONALD C. NUGENT , District Judge . This Court denied Mr. Johnson's Motion for Relief under 28 U.S.C. 2255, and his Motion to Hold in Abeyance Pending Decision, (ECF #51, 60), on March 17, 2017. (ECF #61). The Court ordered at that time that the case be dismissed with prejudice, but neglected to include a Certificate of Appealability. CERTIFICATE OF APPEALABILITY Pursuant to 28 U.S.C. 2253, the Court must determine whether to grant a certificate of appealab..
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MEMORANDUM OPINION AND ORDER
DONALD C. NUGENT, District Judge.
This Court denied Mr. Johnson's Motion for Relief under 28 U.S.C. § 2255, and his Motion to Hold in Abeyance Pending Decision, (ECF #51, 60), on March 17, 2017. (ECF #61). The Court ordered at that time that the case be dismissed with prejudice, but neglected to include a Certificate of Appealability.
CERTIFICATE OF APPEALABILITY
Pursuant to 28 U.S.C. § 2253, the Court must determine whether to grant a certificate of appealability as to any of the claims presented in the Petition. 28 U.S.C. § 2253 provides, in part, as follows:
(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 —
(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).
In order to make "substantial showing" of the denial of a constitutional right, as required under 28 U.S.C. § 2255(c)(2), a habeas prisoner must demonstrate "that reasonable jurists could debate whether . . . the petition should have been resolved in a different manner or that the issue presented were `adequate to deserve encouragement to proceed further.'" Slack v. McDaniel, 529 U.S. 473, 120 S.Ct. 1595, 146 L. Ed. 2d 542 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4, 103 S.Ct. 3383, 77 L. Ed. 2d 1090 (1983)).
Where a district court has rejected the constitutional claims on the merits, the petitioner must demonstrate only that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong. Slack, 529 U.S. at 484. Where the petition has been denied on a procedural ground without reaching the underlying constitutional claims, the court must find that the petitioner has demonstrated that reasonable jurists could debate whether the petition states a valid claim of the denial of a constitutional right and that reasonable jurists could debate whether the district court was correct in its procedural ruling. Id. "Where a plain procedural bar is present and the district court is correct to invoke it to dispose of the case, a reasonable jurist could not conclude either that the district court erred in dismissing the petition or that the petitioner should be allowed to proceed further." Id.
For the reasons stated in the earlier opinion. (ECF #61). the Court concludes that Defendant has failed to make a substantial showing of the denial of a constitutional right and there is no reasonable basis upon which to debate this Court's procedural rulings. Accordingly, the Court declines to issue a certificate of appealability.
CONCLUSION
Having further reviewed Mr. Johnson's Motion for Relief under 28 U.S.C. § 2255, and his Motion to Hold in Abeyance Pending Decision. (ECF #51, 60), an appeal from this Court's decision on March 17, 2017 (ECF #61) could not be taken in good faith, and there is no basis on which to issue a certificate of appealability. 28 U.S.C. § 2253; Fed.R.App.P. 22(b).
IT IS SO ORDERED.
