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United States v. Cooley

United States District Court, Eighth Circuit

May 8, 2013

UNITED STATES OF AMERICA, Plaintiff,
v.
BARRY RENFOLD COOLEY, Defendant.

MEMORANDUM AND ORDER

LAURIE SMITH CAMP, District Judge.

This matter is before the Court on the Defendant's Notice of Appeal (Filing No. 802) and the Clerk's memorandum regarding in forma pauperis status (Filing No. 803). A motion for a certificate of appealability was not filed. The Defendant appeals from the Order (Filing No. 800) denying his request for permission to amend and/or supplement his prior motion to vacate, correct or set aside sentence (Filing No. 798). The Notice of Appeal will be also considered as a request for a certificate for appealability.

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) (citing Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983)).

The Defendant has sought relief under § 2255 repeatedly, and the Court determined that his most recent motion to amend or supplement his prior pleadings would be futile.[1] For the reasons set forth in the Court's previously issued Memoranda and Orders denying the defendant's § 2255 motions (Filings No. 615, 621, 631, 643, 644, 706, 734, 782, 785, and 800), 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).

IT IS ORDERED:

1. A certificate of appealability is denied;
2. The Clerk of Court shall provide a copy of this Order to the Eighth Circuit Court of Appeals; and
3. A copy of this Memorandum and Order shall be mailed to the Defendant at his last known address.

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