U.S. v. Frauendorfer

Full title: UNITED STATES OF AMERICA, Plaintiff, v. RUSSELL FRAUENDORFER, Defendant

Court: United States District Court, D. Nebraska

Date published: Nov 13, 2008

8:04CR64 (D. Neb. Nov. 13, 2008)

Opinion

8:04CR64.

November 13, 2008

ORDER

JOSEPH BATAILLON, District Judge

This matter is before the court pursuant to defendant's notice of appeal, Filing No. 108, of this court's order, Filing No. 107, denying defendant's motion to vacate under 28 U.S.C. § 2255. Pursuant to 28 U.S.C. § 2253(c), this court must determine whether it should issue a certificate of appealability in this case. The court has again reviewed the claims made by the defendant in his § 2255 motion and finds there is no "substantial showing of a denial of a constitutional right." 28 U.S.C. § 2253(c)(2).

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). Slack v. McDaniel, 529 U.S. 473, 476 (2000) (holding that when a habeas corpus petitioner seeks to initiate an appeal of the dismissal of a habeas corpus petition after the effective date of AEDPA, the right to appeal is governed by the certificate of appealability (COA) requirements now found at 28 U.S.C. § 2253(c)). The AEDPA requires the issuance of a COA before a petitioner can appeal the denial of his § 2255 motion. See 28 U.S.C. § 2253(c). Under section 2253(c), the district court will issue a certificate of appealability only if the applicant has made a substantial showing of the denial of a constitutional right. Id. A "substantial showing of the denial of a constitutional right" requires that petitioner demonstrate "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, 529 U.S. at 482.

Where a district court has rejected the constitutional claims on the merits, the showing required to satisfy § 2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong. Id. Defendant's motion was not accompanied by any showing in connection with an appealability issue.

Accordingly, for the reasons set forth in the court's previous Memorandum and Order (Filing No. 107) denying defendant's § 2255 motion, the court concludes that defendant has not made a substantial showing of the denial of a constitutional right as required by 28 U.S.C. § 2253(c).

Accordingly, the court finds that:

1. A certificate of appealability will not be issued in this case; and

2. The Clerk of Court is instructed to provide the Eighth Circuit Court of Appeals with a copy of this order.