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United States v. Levering

United States District Court, D. Nebraska

September 15, 2016

UNITED STATES OF AMERICA, Plaintiff,
v.
MERWYN LEVERING, Defendant.

          MEMORANDUM AND ORDER

          Laurie Smith Camp Chief U.S. District Judge.

         This 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.

         It is 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.

         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)).

         This Court concludes that reasonable jurists could debate whether the Defendant's petition should have been resolved in a different manner.

         PROCEDURAL HISTORY

         On 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 ...


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