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Eric Burnett v. United States of America

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


June 7, 2011

ERIC BURNETT, PETITIONER/DEFENDANT,
v.
UNITED STATES OF AMERICA,
RESPONDENT/PLAINTIFF.

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

MEMORANDUM AND ORDER

Pursuant to Federal Rule of Appellate Procedure 22(b)(1), the Court construes petitioner Eric Burnett's notice of appeal (Doc. 18) as a request for a certificate of appealability. See Ouska v. Cahill-Masching, 246 F.3d 1036, 1045 (7th Cir. 2001). A § 2255 petitioner may not proceed on appeal without a certificate of appealability. 28 U.S.C. § 2253(c)(1); see Ouska, 246 F.3d at 1045.

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 Burnett has made such a showing with respect to the following argument: Burnett's counsel in the proceedings to revoke his supervised release was constitutionally ineffective for failing to file a notice of appeal of the Court's judgment of revocation and imposition of sentence after Burnett timely requested that he do so, in violation of his Sixth Amendment right to counsel.

Accordingly, the Court hereby GRANTS Burnett's motion for a certificate of appealability (Doc. 18) on this issue and CERTIFIES the issue as APPEALABLE.

The Court finds that Burnett has not made such a showing with respect to the remaining issues in his § 2255 motion and, accordingly, declines to issue a certificate of appealability on those issues.

IT IS SO ORDERED.

20110607

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