U.S. v. Muldrow

Full title: UNITED STATES OF AMERICA, Plaintiff, vs. LEALON MULDROW, Defendant

Court: United States District Court, D. Kansas

Date published: Jul 12, 2000

Criminal Action No. 92-20063-02-GTV; Civil Action No. 99-3357-GTV (D. Kan. Jul. 12, 2000)

Opinion

Criminal Action No. 92-20063-02-GTV; Civil Action No. 99-3357-GTV.

July 12, 2000.

John C. Donham, Olathe, KS, for Lealon Muldrow, defendant, pro se.

MEMORANDUM AND ORDER

VanBEBBER, Judge.

The defendant, Lealon Muldrow, has filed an Amended Motion to Motion Requesting C.O.A. (Doc. 162). This motion filed by Mr. Muldrow appears to ask the court to reconsider its order of June 1, 2000 (Doc. 161) which denied a certificate of appealability in connection with the court's order of May 1, 2000 (Doc. 159). The order of May 1, 2000, denied Mr. Muldrow's motion asking that the time period for filing a notice of appeal in connection with the denial of his 28 U.S.C. § 2255 motion be reopened for fourteen days pursuant to Fed.R.App.P. 4(a)(6). The denial of reopening of time period for filing a notice of appeal was based on the fact that Mr. Muldrow did not file the motion to reopen within 180 days of the order from which he seeks to appeal.

In the motion now before the court, Mr. Muldrow calls to the court's attention the recent United States Supreme Court decision inSlack v. McDaniel, ___ U.S. ___, 120 S. Ct. 1595 (2000). In that case the Supreme Court held that:

When the district court denies a habeas petition on procedural grounds without reaching the prisoner's underlying constitutional claim, a C.O.A. (certificate of appealability) should issue (and an appeal of the district court's order may be taken) if 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.

Id. at 1600 (emphasis supplied). I agree with Mr. Muldrow's contention that under Slack, jurists of reason would find it debatable whether his underlying § 2255 motion states a valid claim of the denial of a constitutional right. However, I do not agree that jurists of reason would find it debatable whether this court was correct in its procedural ruling with respect to reopening the time for filing a notice of appeal in the case:

Where a plain procedural bar is present and the district court is correct to invoke it to dispose of the case, a reasonable jurist could not conclude either that the district court erred in dismissing the petition or that the petitioner should be allowed to proceed further. In such a circumstance, no appeal would be warranted.

Id. at 1604.

The court is satisfied that it was procedurally correct in denying the motion to reopen the time for appeal. Mr. Muldrow's amended motion requesting the issuance of a certificate of appealability is, therefore, denied.

BY THE COURT IT IS SO ORDERED.