Spencer v. USA, No. 2:2007cv00955 - Document 27 (D. Utah 2009)
Court Description: MEMORANDUM DECISION and ORDER - Petitioner's Request for Certificate of Appealability is DENIED. Signed by Judge Dale A. Kimball on 3/18/09. (jwt)
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH CENTRAL DIVISION ANTHONY DELLIS SPENCER, Petitioner, MEMORANDUM DECISION AND ORDER vs. UNITED STATES OF AMERICA, Case No. 2:07CV955DAK Respondent. This matter is before the court on Petitioner Anthony Dellis Spencer s Motion for Certificate of Appealability. Pursuant to Rule 22(b)(1) of the Federal Rules of Appellate Procedure, if a petitioner in a Section 2255 proceeding files a notice of appeal, the district judge who rendered the judgment must either issue a certificate of appealablity or state why a certificate should not issue. Fed. R. App. 22(b)(1). Pursuant to Rule 22(b), if the district court grants the certificate it must be sent to the appellate court with Petitioner s notice of appeal. Id. Whereas, if the district court denies the certificate, Petitioner may request a circuit judge to issue the certificate. Id. Under 28 U.S.C. § 2253, 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). This court denied Petitioner s Section 2255 motion. For the reasons set forth in the court s order denying Petitioner s Section 2255 motion, the court concludes that Petitioner has not made a substantial showing of the denial of a constitutional right. Accordingly, Petitioner's Request for Certificate of Appealability is DENIED. DATED this 18th day of March, 2009. BY THE COURT: ________________________________ Dale A. Kimball United States District Judge 2
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