United States District Court, D. Nebraska
MEMORANDUM AND ORDER
Smith Camp Chief U.S. District Judge.
matter is before the Court on the Defendant's Notice of
Appeal (Filing No. 146), Notification of Appeal and NOA
Supplement (Filing No. 150), Clerk's memorandum regarding
in forma pauperis status (Filing No. 147), and the Court of
Appeals' Order (Filing No. 157) remanding this matter for
consideration of a certificate of appealability.
noted that a motion for a certificate of appealability was
not filed. The Defendant appealed from an Amended Judgment
(Filing No. 140) re-sentencing the Defendant to a lesser term
of incarceration, following the partial grant of his motion
for relief under 28 U.S.C. § 2255, Johnson v. United
States, 135 S.Ct. 2551 (2015), and Welch v. United
States, 136 S.Ct. 1257 (2016). See Memorandum and Order
(Filing No. 127). This Court purported to authorize a direct
appeal following re-sentencing in this case (see Filing No.
149). Because the matter was brought before this Court under
28 U.S.C. § 2255, however, this Court must consider
whether a certificate of appealability should issued. See 28
U.S.C. § 2253; Teideman v. Benson, 122 F.3d 518
(8th Cir. 1997). The Clerk's In Forma Pauperis
Memorandum (Filing No. 149) will be amended accordingly, and
this Memorandum and Order will authorize the issuance of a
certificate of appealability.
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
(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).
“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)).
Court concludes that reasonable jurists could debate whether
the Defendant's petition should have been resolved in a
August 13, 2004, following a jury trial, the Defendant was
found guilty of Counts I and II of a two-count Superseding
Indictment. Count I charged the Defendant with being a Felon
in Possession of a Firearm in violation of 18 U.S.C. §
922(g)(1) and § 924 (e)(1). Count II charged him with
Possession of a Stolen Firearm in violation of 18 U.S.C.
§ 922(j). The Defendant was determined to be an Armed
Career Criminal subject to a sentencing enhancement under 18
U.S.C. § 924(e) of the Armed Career Criminal Act
(“ACCA”). Because he used a stolen firearm in
connection with a crime of violence as defined in U.S.
Sentencing Guidelines Manual (“U.S.S.G.”) §
4B1.2(a), his offense level was determined to be 34 under
U.S.S.G. § 4B1.4(b)(3)(A). He had 24 criminal history
points, and his criminal history category was VI. His
sentencing guideline for ...