U.S. v. Vaughn

Full title: UNITED STATES OF AMERICA, Plaintiff, v. TRACY VAUGHN, Defendant

Court: United States District Court, D. Nebraska

Date published: Apr 20, 2007

CASE NO. 8:03CR152 (D. Neb. Apr. 20, 2007)

Opinion

CASE NO. 8:03CR152.

April 20, 2007

MEMORANDUM AND ORDER

LAURIE CAMP, District Judge

This matter is before the Court on the Defendant's request for a certificate of appealability (Filing No. 159). Pursuant to the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 ("AEDPA"), the right to appeal the denial of a motion filed pursuant to 28 U.S.C. § 2255 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 constitutional right" requires "a showing 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) (citation omitted).

For the reasons set forth in the previously issued Memorandum and Order (Filing No. 156) denying the Defendant's § 2255 motion, the Court concludes that the Defendant has not made a substantial showing of the denial of a constitutional right as required by 28 U.S.C. § 2253(c).

IT IS ORDERED:

1. The Defendant's request for a certificate of appealability (Filing No. 159) is denied;

2. The Clerk of Court shall provide a copy of this Order to the Eighth Circuit Court of Appeals; and

3. A copy of this Memorandum and Order shall be mailed to the Defendant at his last known address.