Opinion
3:16cv142 3:01cr0005
12-16-2019
UNITED STATES OF AMERICA v. VICTOR DARNELL THOMAS
Electronic Mail
MEMORANDUM ORDER
AND NOW, this 16th day of December, 2019, the court having issued [246] the Memorandum Order of September 23, 2019, denying [229] defendant's motion to correct sentence pursuant to 28 U.S.C. § 2255 as untimely, IT IS ORDERED that the concomitant request for a certificate of appealability be, and the same hereby is, denied.
"A certificate of appealability may issue . . . only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). "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 when the prisoner shows, at least, 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." Slack v. McDaniel, 529 U.S. 473, 484 (2000). Where the district court has rejected a constitutional claim on its merits, "[t]he [movant ] must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Id.
Applying those standards here, it is clear that jurists of reason would not find it debatable as to whether each of movant's claims should be dismissed as untimely. As noted in the Memorandum Order of September 23, 2019, the binding authority mandates that they be deemed untimely and so dismissed. Accordingly, movant's concomitant request for a certificate of appealability must be denied.
s/David Stewart Cercone
David Stewart Cercone
Senior United States District Judge cc: Adam N. Hallowell, AUSA
(Via CM/ECF Electronic Mail)
Victor Darnell Thomas
Reg. No. 11021-068
FCI - Berlin
P.O. Box 9000
Berlin, NH 03570-9000
(Via United States Mail)