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Millbrook v. United States
May 26, 2010
KIM LEE MILLBROOK, PETITIONER,
UNITED STATES OF AMERICA, RESPONDENT.
The opinion of the court was delivered by: Michael M. Mihm United States District Judge
This matter is now before the Court on two documents entitled Notice of Appeal by Petitioner, Kim Lee Millbrook ("Millbrook"), which are construed in this circuit as a Petitions for Certificate of Appealability from the dismissal of his Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255. For the reasons set forth below, the Court declines to issue a Certificate of Appealability.
As amended by the Antiterrorism and Effective Death Penalty Act of 1996, 28 U.S.C. § 2255 now requires a certificate of appealability prior to the pursuit of an appeal. A certificate may only issue if the applicant makes a substantial showing of the denial of a constitutional right, and any certificate issued must specify what claim(s) merit appellate review.
In denying his § 2255 motion, the Court noted that Millbrook did not raise his jurisdictional claim on direct appeal and was barred from doing so absent a showing of cause and prejudice that he failed to make in his Motion. Furthermore, the claim that the federal government relinquished jurisdiction over him by allowing him to appear in state court on state charges during the time his federal case was pending was without merit. The mere fact that Millbrook was transported from his federal contract facility to appear in state court and then returned to the federal contract facility does not indicate any relinquishment of federal jurisdiction or custody. Klein v. Kindt, 960 F.2d 151, 1992 WL 79044 (7th Cir. Apr. 20, 1992) (finding the fact that the U.S. Marshal took the defendant back for the federal prosecution after state court appearance indicative of no intention to surrender custody and noting presumption that a waiver of custody requires an affirmative act by the sending sovereign.)
Given that he has presented no claims that could be debatable among jurists of reason, Millbrook has failed to make a substantial showing of the denial of a constitutional right. Having found no issue in this proceeding which warrants appellate review, this Court cannot in good faith issue a certificate of appealability for his § 2255 motion.
For the reasons set forth herein, the Court declines to issue a certificate of appealability, and Millbrook's Petitions for Issuance of a Certificate of Appealability [#25 and #28] are DENIED.
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