Opinion
18-10031-EFM 22-1116-EFM
06-12-2023
UNITED STATES OF AMERICA, Plaintiff, v. JASON P. BRISCOE, Defendant.
MEMORANDUM AND ORDER
ERIC F. MELGREN CHIEF UNITED STATES DISTRICT JUDGE
By its Order of April 19, 2023 (Doc. 166), the Court denied Defendant Jason Briscoe's Motion to Vacate (Doc. 138) his conviction pursuant to 28 U.S.C. § 2255. The Court rejected Defendant's argument that, during the course of jury deliberations at the conclusion of the trial, his Sixth Amendment rights to an impartial jury and to effective assistance of counsel were violated. Defendant moves the Court for a Certificate of Appealability (COA) to present those issues on appeal.
Rule 11 of the Rules Governing Section 2255 Proceedings provide authority for the Court to grant or deny a COA when making a ruling adverse to the petitioner. A court may grant a COA “if the applicant has made a substantial showing of the denial of a constitutional right.” A petitioner satisfies this burden if “ ‘reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong.' ” The Court finds that the issues presented by Defendant were at least debatable among reasonable jurists, as Defendant presented reasonably colorable, if ultimately insufficient on the merits, arguments of a denial of his constitutional rights.
28 U.S.C. § 2253(c)(2). The denial of a § 2255 motion is not appealable unless a circuit justice or a circuit or district judge issues a COA. See 28 U.S.C. § 2253(c)(1).
Saiz v. Ortiz, 392 F.3d 1166, 1171 n.3 (10th Cir. 2004) (quoting Tennard v. Dretke, 524 U.S. 274, 282 (2004)).
IT IS ACCORDINGLY ORDERED that Defendant's Motions for Certificate of Appealability is GRANTED.
IT IS SO ORDERED