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United States of America v. Samuel Lindblad

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA


September 13, 2011

UNITED STATES OF AMERICA, PLAINTIFF,
v.
SAMUEL LINDBLAD, DEFENDANT.

The opinion of the court was delivered by: Robert H. Whaley United States District Court

ORDER DENYING PETITIONER'S MOTION FOR CERTIFICATE OF APPEALABILITY

On April 1, 2011, the Court denied Defendant's Motion to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (ECF No. 198). Defendant has appealed that order.

In order to pursue any appeal from the denial or dismissal for writ of habeas corpus brought by a federal prisoner under Section 2255, a petitioner must first obtain a certificate of appealability. 28 U.S.C. § 2253(c):

(c)(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.

A district court possesses the authority to issue a certificate of appealability. United States v. Asrar, 116 F.3d 1268, 1270 (9th Cir.1997). This Court will issue a certificate of appealability when a petitioner makes a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). To make a substantial showing, the Petitioner must show that reasonable jurists could debate whether the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further.'" Miller--El v. Cockrell, 537 U.S. 322, 335-336 (2003) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)).

For the reasons stated in the Court's order denying habeas relief, Defendant is not able to make a substantial showing of a denial of a constitutional right. These determinations are not debatable among jurists of reason, a court could not resolve the issues in a different manner, and there is no issue of sufficient adequacy to deserve encouragement to proceed further. Because Petitioner has not made a substantial showing of the denial of a constitutional right, the Court declines to issue a certificate of appealability. 28 U.S.C. § 2253(c).

Accordingly, IT IS HEREBY ORDERED

1. Defendant's Motion for Certificate of Appealability (ECF No. ___) is DENIED.

2. The Court declines to enter a Certificate of Appealability IT IS SO ORDERED. The District Court Executive is directed to enter this Order and forward copies to Defendant and counsel.

Robert H. Whaley

20110913

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