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United States v. Fischer

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS


May 31, 2007

UNITED STATES OF AMERICA, PLAINTIFF,
v.
EUGENE ALBERT FISCHER, DEFENDANT.

The opinion of the court was delivered by: J. Phil Gilbert District Judge

MEMORANDUM AND ORDER

Pursuant to Federal Rule of Appellate Procedure 22(b)(1), the Court construes defendant Eugene Albert Fischer's ("Fischer") notice of appeal (Doc. 930) as a request for a certificate of appealability. See Ouska v. Cahill-Masching, 246 F.3d 1036, 1045 (7th Cir. 2001). Fischer wishes to appeal the Court's dismissal of his Rule 60(b) motion as an unauthorized successive petition under 28 U.S.C. § 2255. A § 2255 petitioner may not proceed on appeal without a certificate of appealability. 28 U.S.C. § 2253(c)(1); see Ouska, 246 F.3d at 1045. A certificate of appealability may issue "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2); see Tennard v. Dretke, 542 U.S. 274, 282 (2004); Ouska, 246 F.3d at 1045. To make such a showing, the petitioner must "demonstrate that reasonable jurists could debate whether [the] challenge in [the] habeas petition should have been resolved in a different manner or that the issue presented was adequate to deserve encouragement to proceed further."Ouska, 246 F.3d at 1046; accord Tennard, 542 U.S. at 282; Slack v. McDaniel, 529 U.S. 473, 484 (2000) (certificate of appealability should issue if the petitioner demonstrates "that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong.") The Court finds that Fischer has not made such a showing and, accordingly, DENIES Fischer's request for a certificate of appealability (Doc. 930).

IT IS SO ORDERED.

20070531

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