LeBeau v. United States

Opinion

UNITED STATES DISTRICT COURT DISTRICT OF SOUTH DAKOTA WESTERN DIVISION

GERALD WAYNE LEBEAU, 5:19-CV-05011-KES

Petitioner,

ORDER DENYING CERTIFICATE OF vs. APPEALABILITY

UNITED STATES OF AMERICA,

Respondent.

Petitioner, Gerald Wayne LeBeau, filed a motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. Docket 1. The United States move to dismiss the motion for failure to state a claim and for lack of subject matter jurisdiction. Docket 9. This court granted respondent’s motion and dismissed LeBeau’s motion to vacate, set aside, or correct his sentence. Docket 33. When a district court denies a petitioner’s § 2255 motion, the petitioner must first obtain a certificate of appealability before an appeal of that denial may be entertained. Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003). This certificate may be issued “only if the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). A “substantial showing” is one that proves “reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). Stated differently, “[a] substantial showing is a showing that issues are debatable among reasonable jurists, a court could resolve the issues differently, or the issues deserve further proceedings.” Cox v. Norris, 133 F.3d 565, 569 (8th Cir. 1997). LeBeau has not made a substantial showing that his claims are debatable among reasonable jurists, that another

court could resolve the issues raised in his claims differently, or that a question raised by his claims deserves additional proceedings. Thus, a certificate of appealability is not issued. Thus, it is ORDERED: 1. That a certificate of appealability is denied. DATED April 13, 2022.

BY THE COURT:

/s/ Karen E. Schreier KAREN E. SCHREIER UNITED STATES DISTRICT JUDGE