Opinion
CRIMINAL ACTION NO. 08cr369 CIVIL ACTION NUMBER 11cv7569
05-23-2012
UNITED STATES OF AMERICA v. DARRYL BUCK
MEMORANDUM
YOHN, J.
Defendant, Darryl Buck ("Buck") filed a pro se motion to vacate, set aside or correct his sentence under 28 U.S.C. § 2255. The government filed a motion to dismiss to which Buck filed a response. As set forth in my memorandum of May 8, 2012, Buck's guilty plea agreement contained an appellate waiver provision. Because he entered into the guilty plea agreement knowingly and voluntarily, he waived his right to bring the claims in the motion. Moreover, he made no sufficient allegations of a miscarriage of justice to override the waiver. As a result, I granted the government's motion to dismiss and dismissed the motion to vacate, set aside or correct sentence. Defendant has appealed.
I now must determine whether I should issue a certificate of appealability. A habeas petitioner may not appeal the dismissal of his petition unless he receives a certificate of appealability from the district court or the circuit court. See 28 U.S.C. § 2253(c); Fed. R. App. P. 22(b). A court may issue a certificate of appealability only if the petitioner "has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). "The petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Slack v. McDaniel, 529 U.S. 473, 484 (2000). As more fully set forth in my memorandum of May 8, 2012 I have found that Buck made his waiver of appellate rights knowingly and voluntarily and that the enforcement of the waiver would not cause a miscarriage of justice. I am persuaded that reasonable jurists would not find this assessment debatable or wrong. Because Buck has failed to make a substantial showing of the denial of a constitutional right, I will not issue a certificate of appealability.
An appropriate order accompanies this memorandum.