Opinion
18 Civ. 3674 (PAE) (SDA)
05-05-2022
DAVID EVERETTE, Petitioner, v. MARK ROYCE, Respondent.
ORDER
PAUL A. ENGELMAYER, DISTRICT JUDGE
On October 13, 2021, the Court issued an Opinion and Order denying Mr. Everette's petition to vacate his sentence pursuant to 28 U.S.C. § 2254. See Dkt. 40. On November 2, Mr. Everette filed a notice of appeal. Dkt.41. Recently, the Court's staff was contacted by the Second Circuit's clerk's office inquiring as to whether the Court intended to issue a certificate of appealability for Mr. Everette's claims. This Court's failure to rule on the certificate of appealability at the time of its October 13 decision was an oversight.
Pursuant to 28 U.S.C. § 2253, an appeal may not be taken to the Court of Appeals from a final order in a proceeding under section 2254 unless a certificate of appealability is issued. A certificate of appealability may issue “only if the applicant has made a substantial showing of the denial of a constitutional right.” For the reasons set forth in this Court's Opinion and Order denying Mr. Everette's petition, Dkt. 40, Mr. Everette has not made such a “substantial showing.” Therefore, a certificate of appealability shall not issue.
The Clerk of Court is directed to mail a copy of this order to Mr. Everette at his last known address, along with the attached instructions, taken from the Second Circuit's website, which address the steps Mr, Everette may take to seek a certificate of appealability from the Second Circuit.
SO ORDERED.