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.
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UNITED STATES DISTRICT JUDGE