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Gibbs v. United States

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS


February 1, 2006

NANCY RENEE GIBBS, PETITIONER/DEFENDANT,
v.
UNITED STATES OF AMERICA, RESPONDENT/PLAINTIFF.

The opinion of the court was delivered by: Gilbert, District Judge

MEMORANDUM AND ORDER

On March 21, 2005, the Court dismissed this Section 2255 action, finding that as part of her plea agreement, Petitioner had waived the right to challenge her sentence on appeal or in a collateral attack. On January 20, 2006, Petitioner filed a notice of appeal (Doc. 7), in which she also requests issuance of a certificate of appealability.

Pursuant to 28 U.S.C. § 2253, a certificate of appealability may issue "only if the applicant has made a substantial showing of the denial of a constitutional right." Further, Section 2253(c)(3) provides: "The certificate of appealability under paragraph (1) shall indicate which specific issue or issues satisfy the showing required by paragraph (2)."

In her request for a certificate of appealability, Petitioner only reiterates the issues raised in her Section 2255 motion as grounds for this Court to issue a certificate of appealability. Namely, she argues that the evidence does not support a guilty finding nor her lengthy sentence, and that her sentence is invalidated by Blakely v. Washington, 124 S.Ct. 2531 (2004), and United States v. Booker, 125 S.Ct. 738 (U.S., Jan. 12, 2005). However, she makes no attempt to refute the Court's finding that she waived her right to challenge her sentence through a direct appeal or through any sort of collateral attack.*fn1

Accordingly, the Court finds that Petitioner has not made "a substantial showing of the denial of a constitutional right," and the request for issuance of a certificate of appealability is DENIED.

IT IS SO ORDERED.

J. Phil Gilbert U. S. District Judge


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