Opinion
CASE NO. 2:13-CV-363 CRIM. NO. 2;12-CR-011(1)
02-04-2014
JEREMY J. HARVEY, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
JUDGE PETER C. ECONOMUS
MAGISTRATE JUDGE KEMP
OPINION AND ORDER
On June 5, 2013, final judgment was entered dismissing the instant motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. 2255. On January 16, 2014, the Court denied Petitioner's Motion for Reconsideration. See Doc. No. 41. This matter now is before the Court on Petitioner's January 30, 2014, Notice of Appeal which this Court construes as a Request for a Certificate of Appealability. For the reasons that follow, Petitioner's Request for a Certificate of Appealability, Doc. No. 42, is DENIED.
On January 16, 2014, the Court denied Petitioner's Motion for Reconsideration. Doc. No. 41. Thus, Petitioner's Notice of Appeal is timely under the provision of Rule 4(a)(4)(A) of the Federal Rules of Civil Procedure.
In this habeas corpus petition, Petitioner raises two claims regarding the constitutionality of the statutes at issue and two claims regarding sentence his sentence. This Court dismissed these claims as waived due to Petitioner's failure to establish cause and prejudice for failing to raise the claims on appeal or waived by entry of his guilty plea.
As provided in 28 U.S.C. § 2253, a petitioner seeking to appeal an adverse ruling in the district court on a petition for writ of habeas corpus or on a § 2255 motion to vacate must obtain a certificate of appealability before proceeding.
Rule 11(a) of the Rules Governing § 2254 cases provides:
The district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant. Before entering the final order, the court may direct the parties to submit arguments on whether a certificate should issue. If the court issues a certificate, the court must state the specific issue or issues that satisfy the showing required by 28 U.S.C. § 2253(c) (2). If the court denies a certificate, the parties may not appeal the denial but may seek a certificate from the court of appeals under Federal Rule of Appellate Procedure 22. A motion to reconsider a denial does not extend the time to appeal.
To obtain a certificate of appealability, a petitioner must show at least that "jurists of reason would find it debatable whether the petition states a valid claim of denial of a constitutional right." Slack v. McDaniel, 529 U.S. 473, 484 (2000)(quoting Barefoot v. Estelle, 463 U.S. 880, 893 (1983)), superseded on other grounds by statute, 28 U.S.C. § 2253(c)(2), as recognized in Rickman v. Bell, 131 F.3d 1150, 1165. That is, it must find that reasonable jurists would find the district court's assessment of the petitioner's constitutional claims debatable or wrong or because they warrant encouragement to proceed further. Banks v. Dretke, 540 U.S. 668, 705 (2004); Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). If the district court dismisses the petition on procedural grounds without reaching the constitutional questions, the petitioner must also show that jurists of reason would find it debatable whether the district court was correct in its procedural ruling. Slack, 529 U.S. at 484. (6th Cir.1997).
Here, the record fails to reflect either that reasonable jurists would debate whether Petitioner's claims warrant further review, or that jurists of reason would find it debatable that this Court was correct in its procedural rulings. Petitioner's Request for a Certificate of Appealability, Doc. No. 42, therefore is DENIED.
IT IS SO ORDERED.
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UNITED STATES DISTRICT JUDGE