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Phipps v. United States

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO EASTERN DIVISION
Apr 23, 2014
CASE NO. 2:14-CV-227 (S.D. Ohio Apr. 23, 2014)

Opinion

CASE NO. 2:14-CV-227 CRIM. NO. 11-CR-00080

04-23-2014

SHERON PHIPPS, Petitioner, v. UNITED STATES OF AMERICA, Respondent.


JUDGE PETER C. ECONOMUS

MAGISTRATE JUDGE KEMP


OPINION AND ORDER

On April 2, 2014, final judgment was entered dismissing the instant motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255. This matter is before the Court on Petitioner's April 17, 2014, notice of intent to file an appeal, which this Court construes as a request for a certificate of appealability. For the reasons that follow, Petitioner's request, Doc. No. 58, is DENIED.

Petitioner asserts, as his sole ground for relief in these § 2255 proceedings, that the Court's determination at sentencing to hold him responsible for three kilograms of cocaine violates his Sixth Amendment right to a jury trial. This Court dismissed Petitioner's claim on the merits.

When a claim has been denied on the merits, a certificate of appealability may issue only if the petitioner "has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). This standard is a codification of Barefoot v. Estelle, 463 U.S. 880 (1983). Slack v. McDaniel, 529 U.S. 473, 484. To make a substantial showing of the denial of a constitutional right, a petitioner must show "that reasonable jurists could debate whether. . . the petition should have been resolved in a different manner or that the issues presented were " 'adequate to deserve encouragement to proceed further.' " Id. (citing Barefoot, 463 U.S ., at 893, and n. 4). For the reasons set forth in the Magistrate Judge's Report and Recommendation, Doc. No. 54, Petitioner has failed to meet this standard here. His request for a certificate of appealability, Doc. No. 58, is DENIED.

IT IS SO ORDERED.

_________________

UNITED STATES DISTRICT JUDGE


Summaries of

Phipps v. United States

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO EASTERN DIVISION
Apr 23, 2014
CASE NO. 2:14-CV-227 (S.D. Ohio Apr. 23, 2014)
Case details for

Phipps v. United States

Case Details

Full title:SHERON PHIPPS, Petitioner, v. UNITED STATES OF AMERICA, Respondent.

Court:UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO EASTERN DIVISION

Date published: Apr 23, 2014

Citations

CASE NO. 2:14-CV-227 (S.D. Ohio Apr. 23, 2014)