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United States v. Thomas

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


March 6, 2009

UNITED STATES OF AMERICA, PLAINTIFF,
v.
CHARLES BRUCE THOMAS, DEFENDANT.

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

MEMORANDUM AND ORDER

This matter comes before the Court on defendant Charles Bruce Thomas's motion for a certificate of appealability (Doc. 119) to appeal the denial of his Rule 60(b) motion for relief from judgment and motion to supplement, which the Court construed as a second or 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 v. Cahill-Masching, 246 F.3d 1036, 1045 (7th Cir. 2001). This is true even for cases in which the court dismissed an unauthorized second or successive collateral attack for lack of jurisdiction. Sveum v. Smith, 403 F.3d 447, 448 (7th Cir. 2005) (per curiam).

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 Thomas has not made such a showing and, accordingly, DENIES Thomas's motion for a certificate of appealability (Doc. 119).

IT IS SO ORDERED.

20090306

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