USA v. Villalobos-Delgado et al
Criminal

District of Nebraska, ned-8:2004-cr-00527-33583

MEMORANDUM AND ORDER that the defendant's motion for certificate of appealability is denied; denying as moot {{93}} Motion for Leave to Proceed In Forma Pauperis; the Clerk of Court shall provide a copy of this Order to the Eighth Circuit Court of Appeals; and a copy of this Order shall be mailed to the defendant at his last known address as to Daniel Villalobos-Delgado (1) Ordered by Judge Laurie Smith Camp. (copies mailed as directed)

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8:04-cr-00527-LSC-FG3 Doc # 94 Filed: 11/15/07 Page 1 of 2 - Page ID # 339 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA UNITED STATES OF AMERICA,) CASE NO. 8:04CR527) Plaintiff,)) MEMORANDUM v.) AND ORDER) DANIEL VILLALOBOS-DELGADO,)) Defendant.) This matter is before the court on the Defendant's Notice of Appeal (Filing No. 92) and motion for leave to proceed in forma pauperis (Filing No. 93). The Defendant, Daniel Villalobos-Delgado, appeals from the Memorandum and Order (Filing No. 90) and Judgment (Filing No. 91) denying his Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody ("§ 2255 motion"). However, before the Defendant may appeal the denial of his § 2255 motion, a "Certificate of Appealability" must issue. Pursuant to the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214 ("AEDPA"), the right to appeal the denial of a § 2255 motion is governed by the certificate of appealability requirements of 28 U.S.C. § 2253(c). 28 U.S.C. § 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: (c)(1) Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from– .... (B) the final order in a proceeding under section 2255. (2) A certificate of appealability may issue under paragraph (1) only if the applicant has made a substantial showing of the denial of a constitutional right. (3) The certificate of appealability under paragraph (1) shall indicate which specific issue or issues satisfy the showing required by paragraph (2). 28 U.S.C. § 2253(c). 8:04-cr-00527-LSC-FG3 Doc # 94 Filed: 11/15/07 Page 2 of 2 - Page ID # 340 A "substantial showing of the denial of a constitutional right" requires a demonstration "that 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.'" Slack v. McDaniel, 529 U.S. 473, 484 (2000) (citing Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983)). For the reasons thoroughly discussed in the Court's previously issued Memorandum and Order (Filing No. 90) denying the Defendant's § 2255 motion, the Court concludes that the Defendant has not made a substantial showing of the denial of a constitutional right as required by 28 U.S.C. § 2253(c). Because the Eighth Circuit reviews all denials of requests for certificates of appealability, the Defendant's motion for leave to proceed in forma pauperis is denied as moot. IT IS ORDERED: 1. The Defendant's motion for certificate of appealability is denied; 2. The Defendant's motion for leave to appeal in forma pauperis (Filing No. 93) is denied as moot; 3. The Clerk of Court shall provide a copy of this Order to the Eighth Circuit Court of Appeals; and 4. A copy of this Order shall be mailed to the defendant at his last known address. DATED this 15th day of November, 2007. BY THE COURT: s/Laurie Smith Camp United States District Judge 2