IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA
March 1, 2013
UNITED STATES OF AMERICA,
PIMENIO VELA HERRERA, DEFENDANT.
The opinion of the court was delivered by: Laurie Smith Camp Chief United States District Judge
MEMORANDUM AND ORDER
This matter is before the Court on the Defendant's Motion Requesting a Certificate of Appealability, also construed as a Notice of Appeal (Filing No. 80), and the Defendant's Motion and Affidavit for Permission to Appeal In Forma Pauperis (Filing No. 78). The Defendant seeks to appeal the Order (Filing No. 75) denying his Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody ("§ 2255 motion").
Before the Defendant may appeal the denial of his § 2255 motion, a "Certificate of Appealability" must issue. Pursuant to the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214 ("AEDPA"), the right to appeal the denial of a § 2255 motion is governed by the certificate of appealability requirements of 28 U.S.C. § 2253(c). 28 U.S.C. § 2253(c)(2) provides that a certificate of appealability may issue only if the applicant has made a substantial showing of the denial of a constitutional right:
(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--
(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.
(3) The certificate of appealability under paragraph (1) shall indicate which specific issue or issues satisfy the showing required by paragraph (2).
28 U.S.C. § 2253(c).
A "substantial showing of the denial of a constitutional right" requires a demonstration "that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were '"adequate to deserve encouragement to proceed further."'" Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 & n.4 (1983)).
The issues raised in the § 2255 motion were carefully considered. For the reasons set forth in the Court's previously issued Memorandum and Order (Filing No. 75) denying the Defendant's § 2255 motion, the Court concludes that the Defendant has not made a substantial showing of the denial of a constitutional right as required by 28 U.S.C. § 2253(c). Therefore, the Court also concludes that the Defendant may not proceed in forma pauperis on appeal.
IT IS ORDERED:
1. The Motion Requesting a Certificate of Appealability (Filing No. 80) is denied;
2. The Defendant's Motion and Affidavit for Permission to Appeal In Forma Pauperis (Filing Nol 78) is denied; and
3. The Clerk is directed to mail a copy of this Order to the Defendant at his last known address.
BY THE COURT
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