United States v. Wences-Adame

Full title: UNITED STATES OF AMERICA v. JESUS WENCES-ADAME

Court: UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA

Date published: Oct 5, 2011

NO. 07-71-FJP-CN (M.D. La. Oct. 5, 2011)

Opinion

NO. 07-71-FJP-CN

10-05-2011

UNITED STATES OF AMERICA v. JESUS WENCES-ADAME

FRANK J. POLOZOLA

CRIMINAL ACTION

RULING

The petitioner has filed a Notice of Appeal (R. Doc. 83), which this Court interprets as an application for a certificate of appealability pursuant to 28 U.S.C. § 2253(c), and an Application to Proceed Without Prepayment of Fees on Appeal (R. Doc. 84). Section 2253(c) provides:

(1) Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from —

(A) the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State court; or
(B) the final order in a proceeding under section 2255.

(2) A certificate of appealability may issue under paragraph (1) only if the applicant has made a substantial showing of the denial of a constitutional right.

Under this statute, in order to obtain a certificate of appealability, the petitioner must make a substantial showing of the denial of a federal right. 28 U.S.C. § 2253(c)(2). In addition, he must also show that the issues which he presents are debatable among jurists of reason, that a court could resolve these issues in a different manner, or that the questions presented are of sufficient import to warrant encouragement to proceed further. Barefoot v. Estelle, 463 U.S. 880, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983); Sawyers v. Collins, 986 F.2d 1493 (5th Cir. 1993), cert, denied, 508 U.S. 933, 113 S.Ct. 2405, 124 L.Ed.2d 300 (1993).

Upon a review of this matter, the Court finds that the petitioner has not made the requisite substantial showing of the denial of a federal right, and the Court does not believe that the issues in this case are likely to be debatable among jurists of reason such that a court could resolve this matter differently. Accordingly, the petitioner's Notice of Appeal (R. Doc. 83), which has been interpreted as an application for a certificate of appealability, and his Application to Proceed Without Prepayment of Fees on Appeal (R. Doc. 84), are hereby denied.

Baton Rouge, Louisiana, this 5 day of October, 2011.

Baton Rouge, Louisiana, this 5th day of October, 2011.

FRANK J. POLOZOLA

UNITED STATES DISTRICT JUDGE