Opinion
Case No. 97-40005-01-SAC, Case No. 00-3477-SAC
February 26, 2003.
MEMORANDUM AND ORDER
The defendant has filed a notice of appeal from the court's order denying his motion under 28 U.S.C. § 2255, and now requests that this court issue a certificate of appealability. "If an applicant files a notice of appeal, the district judge who rendered the judgment must either issue a certificate of appealability or state why a certificate should not issue." Fed.R.App.P. 22(b)(1). "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). Defendant may make this showing by demonstrating that the issues he raises are debatable among jurists, that a court could resolve the issues differently, or that the questions presented deserve further proceedings. See Slack v. McDaniel, 529 U.S. 473, 483-84 (2000).
When the court denies a § 2255 motion on procedural grounds, a certificate of appealability depends on the applicant's showing "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, 529 U.S. at 478 (2000) (construing 28 U.S.C. § 2253(c)). If issued, the certificate must "indicate which specific issue or issues satisfy the showing." 28 U.S.C. § 2253(c)(3).
In his motion, defendant alleges that he "can make a substantial showing of denial of a constitutional right," and that the court "erroneously resolved constitutional issues." (Dk. 290.) Defendant then lists the issues on which he believes he is entitled to relief, which relate to ineffective assistance of counsel and Apprendi, and recites the standard or review for a certificate of appealability. Defendant then contends "that he has met the standard for a C.O.A. with the support of the previous facts and laws presented in the original motion pursuant to 28 U.S.C. § 2255 and traverse." (Dk. 290, p. 2.) No other claim of error, or arguments in support thereof, are made.
In short, the defendant has failed to make any showing of the denial of a constitutional right. See 28 U.S.C. § 2253(c)(2). Defendant has failed to demonstrate that the issues he raises are debatable among jurists, that a court could resolve the issues differently, or that the questions presented deserve further proceedings. Merely referring the court to its § 2255 rulings, and alleging they are in error falls far short of the mark.
IT IS THEREFORE ORDERED that the defendant is denied a certificate of appealability.