Opinion
Case No. 08-4006.
May 1, 2008
ORDER
This matter is now before the Court on Petitioner, Kim Lee Millbrook's ("Millbrook"), Notice of Appeal, which the Court construes as a Motion for Certificate of Appealability from the denial of his Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255. For the reasons set forth below, the Motion [#17] is DENIED.
DISCUSSION
As amended by the Antiterrorism and Effective Death Penalty Act of 1996, 28 U.S.C. § 2255 now requires the issuance of a certificate of appealability prior to obtaining appellate review. A certificate may only issue if the applicant makes a substantial showing of the denial of a constitutional right. The certificate must specify what issue(s) merit appellate review.
In the case at bar, Millbrook filed a document entitled "Special and Limited Appearance" in which he challenges the jurisdiction of the Court to convict and sentence him. The Court issued a warning pursuant to Castro v. United States, 540 U.S. 375, 124 S. Ct. 786 (2003), advising him that the substance of his challenge warranted the recharacterization of his pleading as a Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255. Millbrook was advised of the consequences of this recharacterization and affording him the opportunity to withdraw his filing. When his response failed to acknowledge the implications of proceeding with his filing, the Court issued a second Castro warning and again offered him the opportunity to withdraw his filing. After Millbrook again responded in a way that neither indicated his acknowledgment of the implications nor any intent to withdraw his filing, the Court construed his pleading as his initial § 2255 Motion and ordered the Government to respond. That Motion is not yet fully briefed.
Although he has no final judgment to appeal and the Court has not rendered any decision on the merits of this case, Millbrook has now filed a Notice of Appeal and Motion for Certificate of Appealability. In seeking a certificate of appealability, he makes no effort to demonstrate how he suffered the substantial denial of a constitutional right, much less suggest that jurists of reason could disagree with the Court's rulings. Millbrook's Motion makes no effort to demonstrate why he meets the standard necessary for issuance of a Certificate of Appealability, particularly as judgment has not been entered in this proceeding.
In considering whether a certificate of appealability should issue, the Court cannot find that Millbrook has made a substantial showing of the denial of a constitutional right as no claims raised before this Court come close to presenting issues debatable among jurists of reason under the present state of the law. Finding no issue in this proceeding to date which warrants appellate review, the Court cannot in good faith issue a certificate of appealability for Millbrook's § 2255 Motion.