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Womack v. United States
July 22, 2010
ANTHONY WOMACK, PLAINTIFF,
UNITED STATES OF AMERICA, DEFENDANT.
The opinion of the court was delivered by: Herndon, Chief Judge
On May 20, 2010 the Court dismissed with prejudice Womack's 28 U.S.C. § 2255 petition (Doc. 6). On May 21, 2010, the Clerk of the Court entered judgment reflecting the same (Doc. 7). On June 18, 2010, Defendant filed his Notice of Appeal (Doc. 8). Although Defendant failed to file a motion for certificate of appealability, the Court construes the notice of appeal (Doc. 8) as a motion for certificate of appealability.
Pursuant to 28 U.S.C. § 2253, a prisoner seeking appellate review of a district court's denial of a habeas petition or a petition under § 2255 must obtain a certificate of appealability. 28 U.S.C. § 2253(c)(1). 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." Section 2253(c)(3) adds that the certificate must "indicate which specific issue or issues satisfy the showing required by paragraph (2)." As a particular matter, "[t]he certificate is a screen devise, helping to conserve judicial (and prosecutorial) resources. The obligation to identify a specific issue concentrates the parties' attention (and screens out weak issues); the limitation to constitutional claims also reduces the number of appeals while simultaneously removing a category of claim that...has poor prospects." Young v. United States, 124 F.3d 794, 799 (7th Cir. 1997); Buie v. McAdory, 322 F.3d 980, 981 (7th Cir. 2003). As stated previously, a certification of appealability may be issued only upon a "substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253. A petitioner must demonstrate that an issue is debatable among jurists of reason or that the questions deserve encouragement to proceed further. Arrendondo v. Huibregtse, 542 F.3d 1155, 1156 (7th Cir. 2008) (quoting Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595 (2000); Barefoot v. Estelle, 463 U.S. 880, 893 n.4, 103 S.Ct. 3383, 3394-95 & n.4 (1983)). Here, the Petitioner has neither specified the issues which he seeks to appeal nor has he even formally sought the issuance of the certificate. Therefore, Petitioner has failed to satisfy the requirements of 28 U.S.C. § 2253. Accordingly, the Court DENIES Petitioner's construed motion for certificate of appealability (Doc. 8).
David R Herndon Chief Judge United States District Court
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