Bland v. United States of America, No. 3:2009cv03052 - Document 15 (C.D. Ill. 2009)

Court Description: OPINION entered by Judge Jeanne E. Scott on 11/23/2009. Petitioner Shawn Bland's Pro-Se Motion for Certification of Probible [sic] Cause for Appeal of his 28 U.S.C. Section 2255 Motion (d/e 14) is DENIED. (MAS, ilcd)

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E-FILED Monday, 23 November, 2009 04:59:31 PM Clerk, U.S. District Court, ILCD IN THE UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF ILLINOIS SPRINGFIELD DIVISION SHAWN BLAND ) ) ) ) ) ) ) ) ) Petitioner, v. UNITED STATES OF AMERICA, Respondent. No. 09-3052 OPINION JEANNE E. SCOTT, U.S. District Judge: This matter is before the Court on Petitioner Shawn William Blands [sic] Pro-Se Motion for Certification of Probible [sic] Cause for Appeal of His 28 U.S.C. § 2255 Motion (Motion) (d/e 14), in which he asks the Court for a Certificate of Appealability (COA). Petitioner has not filed a notice of appeal. For the reasons set forth below, Petitioner s Motion is denied. Under Federal Rule of Appellate Procedure 22(b)(1), a federal habeas petitioner cannot file an appeal unless the district court that denied his § 2255 petition either issues a certificate of appealability or states why such a certificate should not issue. Fed. R. App. P. 22(b)(1). Pursuant to 28 U.S.C. § 2253(c)(2), a certificate of appealability may issue . . . only if the 1 applicant has made a substantial showing of the denial of a constitutional right. The applicant must demonstrate that reasonable jurists could debate whether the challenges in his habeas petition should [have] been resolved differently or that his petition adequately shows a sufficient chance of the denial of a constitutional right that he deserves encouragement to proceed further. Rutledge v. United States, 230 F.3d 1041, 1047 (7th Cir. 2000). Petitioner s Motion argues that he was denied effective assistance of counsel at the trial and appellate phases of his underlying case. These are the same arguments he raised in his initial § 2255 Petition (d/e 1) and his Rule 59(e) or 60(b) Motion to Vacate or to Reconsider the Courts [sic] November 5, 2009 Judgment Order to Dismiss the Petitioners [sic] 28 U.S.C. § 2255 Motion to Vacate, Set Aside or Correct His Sentence (d/e 13), and that this Court rejected on two prior occasions. See November 6, 2009, Opinion (d/e 11); November 20, 2009, Text Order. The Court has again independently reviewed the record and finds no basis for granting a COA. Petitioner s ineffective assistance of counsel arguments are premised on the contention that the Government allegedly committed a Brady violation in his underlying criminal case. However, on direct appeal the 2 U.S. Court of Appeals for the Seventh Circuit held that there had been no Brady violation, and the Court based its denial of Petitioner s § 2255 Petition on the Seventh Circuit s decision. See November 6, 2009, Opinion (d/e 11), 8. Reasonable jurists would not debate this Court s denial of Petitioner s § 2255 Petition, and accordingly, the Court denies Petitioner s Motion. However, when a district court denies a COA, the applicant may ask a circuit judge to issue the certificate. Fed. R. App. P. 22(b)(1). Thus, Petitioner may file a request for a COA in the Seventh Circuit; he should not file such a request in this Court. THEREFORE, Petitioner Shawn William Blands [sic] Pro-Se Motion for Certification of Probible [sic] Cause for Appeal of His 28 U.S.C. § 2255 Motion (Motion) (d/e 14) is DENIED. IT IS THEREFORE SO ORDERED. ENTER: November 23, 2009 FOR THE COURT: s/ Jeanne E. Scott JEANNE E. SCOTT UNITED STATES DISTRICT JUDGE 3

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