October 7, 2013
UNITED STATES OF AMERICA, Plaintiff,
DAMIAN Y. JAMES, Defendant.
MEMORANDUM AND ORDER
J. PHIL GILBERT, District Judge.
This matter comes before the Court on defendant Damian Y. James' appeal of the Court's orders (Docs. 478 & 481) dismissing a motions to vacate, set aside or correct his sentence under 28 U.S.C. § 2255 and a motion to vacate that order for lack of jurisdiction because both motions are actually successive § 2255 petitions filed without the proper authorization from the Seventh Circuit Court of Appeals. Pursuant to Federal Rule of Appellate Procedure 22(b)(1), the Court construes James' notice of appeal 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 is required to appeal from the dismissal of an unauthorized second or successive collateral attack. Sveum v. Smith, 403 F.3d 447, 448 (7th Cir. 2005) ( per curiam ). It 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 where the Court denies relief on procedural grounds, the petitioner must show "that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling." Slack v. McDaniel, 529 U.S. 473, 484 (2000) (emphasis added); accord Gonzalez v. Thaler, 132 S.Ct. 641, 648 (2012). Thus, disputes about procedural or statutory issues in a case cannot justify a certificate of appealability unless "a substantial constitutional issue lurks in the background, and the statutory question is independently substantial." Ramunno v. United States, 264 F.3d 723, 725 (7th Cir. 2001) (question of a petition's timeliness) (citing Slack, 529 U.S. at 483-85). In this case, the Court finds that no reasonable jurist could debate that James' filings were successive § 2255 petitions. Therefore, James has not made the required showing, and the Court accordingly DECLINES to issue a certificate of appealability.
IT IS SO ORDERED.