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Gerald Howliet v. United States of America

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


January 29, 2011

GERALD HOWLIET, PETITIONER,
v.
UNITED STATES OF AMERICA DEFENDANT.

The opinion of the court was delivered by: Murphy, District Judge:

MEMORANDUM AND ORDER

On December 28, 2010, this Court entered final judgment and dismissed Mr. Howliet's motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. Mr. Howliet filed a notice of appeal on January 18, 2011.

In a 28 U.S.C. 2255 proceeding, the applicant cannot take an appeal unless a circuit justice or a circuit or district judge issues a certificate of appealability under 28 U.S.C. 2253(c). Mr. Howliet's notice of appeal states that he anticipates a certificate of appealability "will follow" his notice (Doc. 13). Because Mr. Howliet may not proceed on appeal without a certificate of appealability, the Court construes Mr. Howliet's notice of appeal to include a request for a certificate of appealability. See FED. R. APP. P. 22(b). "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 also Young v. United States, 124 F.3d 794, 798-99 (7th Cir. 1997); Nunez v. United States, 96 F.3d 990, 991-92 (7th Cir. 1996). "A petitioner makes a substantial showing where 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." Sandoval v. United States, 574 F.3d 847, 852 (7th Cir. 2009), quoting Arredondo v. Huibreqtse, 542 F.3d 1155, 1165 (7th Cir. 2008).

For the reasons set forth in the Court's December 28, 2010 Memorandum and Order (see Doc. 11), Mr. Howliet has not made a substantial showing of the denial of a constitutional right. Accordingly, the Court DECLINES to issue a certificate of appealability. Pursuant to Federal Rule of Appellate Procedure 22(b), Mr. Howliet may renew his request for a certificate of appealability to the Court of Appeals for the Seventh Circuit.

IT IS SO ORDERED.

G. PATRICK MURPHY United States District Judge

20110129

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