IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS
April 30, 2010
UNITED STATES OF AMERICA, PLAINTIFF,
DARRON J. MURPHY, SR., DEFENDANT.
The opinion of the court was delivered by: G. Patrick Murphy United States District Judge
MEMORANDUM AND ORDER
MURPHY, District Judge
On February 19, 2010, this Court dismissed, for lack of jurisdiction, Petitioner's Motion to Correct Sentence (Doc. 150) and Petitioner's "Post Trial Motion to Dismiss Indictment ." (Doc. 151), construing both as successive motions to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255 (see Doc. 152).*fn1 On April 1, 2010, this Court once again dismissed, for lack of jurisdiction, Petitioner's "Motion That the Court Recall It's [sic] Order ." (Doc. 154),*fn2 and Directed the Clerk of Court to return unfiled any further motions submitted by Petitioner challenging the dismissal of this action (Doc. 155). See Support Systems Int'l, Inc. v. Mack, 45 F.3d 185 (7th Cir. 1995). Petitioner then filed a notice of appeal on April 20, 2010, from this Court's last two Orders (Doc. 156).
Given the convoluted procedural state of Petitioner's repeat claims, it is not entirely clear whether this Court should construe Petitioner's notice of appeal as another request for a certificate of appealability (COA).*fn3 See, e.g., U.S. v. Carraway, 478 F.3d 845 (7th Cir. 2007) (After construing Carraway's request for relief under Rule 60(b)(5) as a successive § 2255 motion over which it had no jurisdiction, the district court treated his motion to proceed on appeal in forma pauperis as "an implicit request for a certificate of appealability pursuant to § 2253(c)."). To the extent this Court is required to construe Petitioner's notice of appeal as a request for a COA, however, the request is denied because Petitioner has, once again, failed to make a substantial showing of the denial of a constitutional right. See 28 U.S.C. § 2253(c)(2).
Section 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." For purposes of the statute, a substantial showing of the denial of a constitutional right means 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." Dalton v. Battaglia, 402 F.3d 729, 738 (7th Cir. 2005) (quoting Miller-El v. Cockrell, 537 U.S. 322, 336 (2003)); Cf. Slack v. McDaniel, 529 U.S. 473, 483-84 (2000); Barefoot v. Estelle, 463 U.S. 880, 893 & n.4 (1983); Rodriguez v. United States, 286 F.3d 972, 978 (7th Cir. 2002); Ouska v. Cahill-Masching, 246 F.3d 1036, 1046 (7th Cir. 2001); Rutledge v. United States, 230 F.3d 1041, 1047 (7th Cir. 2000).
The Court has carefully considered and reviewed all of Petitioner's arguments. For the reasons set forth in the Court's May 7, 2008 Memorandum and Order (see Case No. 06-343, Doc. 20), Petitioner has not made a substantial showing of the denial of a constitutional right. This conclusion already has been upheld once by the court of appeals. Nevertheless, Petitioner has chosen to repeat, at least four times, the same substantive arguments, using creative, lengthy and, often- times, nonsensical captioning, in an attempt to do an end-run around § 2255(h)'s ban on second or successive motions without prior authorization from the court of appeals. Apparently, this Court's repeated direction - that the substance of Petitioner's motions will determine how they are handled; not the creative captions - has fallen upon def ears (See, e.g., Doc. 152, p.2, citing United States v. Boyd, 591 F.3d 953, 955 (7th Cir. 2010)("Substance trumps form")).
Accordingly, for the foregoing reasons, the Court DECLINES to issue a certificate of appealability. Pursuant to Federal Rule of Appellate Procedure 22(b), Petitioner may present his request for a certificate of appealability to the Court of Appeals for the Seventh Circuit.
IT IS SO ORDERED.