Opinion
Criminal Action 1:19-CR-00448-LMM-CCB-1 Civil Action 1:21-CV-00719-LMM-CCB
07-19-2021
SEDARIOUS LAWRENCE, Movant, v. UNITED STATES OF AMERICA, Respondent.
MOTION TO VACATE 28 U.S.C. § 2255
FINAL REPORT AND RECOMMENDATION
CHRISTOPHER C. BLY UNITED STATES MAGISTRATE JUDGE
Movant Sedarious Lawrence, confined at United States Penitentiary McCreary in Pine Knot, Kentucky, filed a motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255. (Doc. 42.) Movant also filed a motion to withdraw the 28 U.S.C. § 2255 motion. (Doc. 48.) He explains that he misunderstood the purpose of the § 2255 motion and believed that it was necessary to file the motion in order to show extraordinary and compelling reasons for his 18 U.S.C. § 3582(c)(1)(A) motion. (Id. at 1.) As a result, he asks for the Court to dismiss his § 2255 motion. (Id. at 2.) The Government, although it filed a response to the original § 2255 motion as directed, has not indicated any opposition to Movant's motion to withdraw.
Accordingly, it is RECOMMENDED that Movant's motion to withdraw 28 U.S.C. § 2255 motion (Doc. 48) be GRANTED and Movant's motion to vacate (Doc. 42) be DISMISSED without prejudice.
I. Certificate of Appealability
Pursuant to Rule 11 of the Rules Governing Section 2255 Cases, “[t]he district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant.... 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).” Section 2253(c)(2) states that a certificate of appealability may issue “only if the applicant has made a substantial showing of the denial of a constitutional right.” A substantial showing of the denial of a constitutional right “includes 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) (internal quotation marks omitted).
When the district court denies a habeas petition on procedural grounds without reaching the prisoner's underlying constitutional claim . . . a certificate of appealability should issue only when the prisoner shows both that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.Jimenez v. Quarterman, 555 U.S. 113, 118 n.3 (2009) (citing Slack, 529 U.S. at 484) (internal quotation marks omitted).
It is RECOMMENDED that a certificate of appealability be DENIED because resolution of the issue present-Movant's request to withdraw his motion-is not debatable. If the District Judge adopts this recommendation and denies a certificate of appealability, Movant is advised that he “may not appeal the denial but may seek a certificate from the court of appeals under Federal Rule of Appellate Procedure 22.” 28 U.S.C. foll. § 2255, Rule 11(a).
II. Conclusion
For the reasons stated above, it is RECOMMENDED that Movant's motion to withdraw 28 U.S.C. § 2255 motion (Doc. 48) be GRANTED, Movant's motion to vacate (Doc. 42) be DISMISSED without prejudice, and a certificate of appealability be DENIED.
The Clerk is DIRECTED to terminate the referral to the undersigned.
IT IS SO RECOMMENDED, this 19th day of July, 2021.