Rutherford v. United States

Opinion

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TEXAS

BRUCE ALLEN RUTHERFORD #27006-078§ § versus § CIVIL ACTION NO. 4:19-CV-348 § CRIMINAL ACTION NO. 4:17-CR-41(1) UNITED STATES OF AMERICA §

MEMORANDUM OPINION AND ORDER On July 17, 2023, Appellant Bruce Allen Rutherford filed a notice of appeal (Dkt. #67), but he must first obtain a Certificate of Appealability before he may appeal a district court’s decision. 28 U.S.C. § 2253(c)(1). The Court construes his notice of appeal as a motion for Certificate of Appealability. A Certificate of Appealability may issue only if the movant has made a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). In cases where a district court rejects a movant’s constitutional claims on the merits, the movant “must demonstrate that 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); Henry v. Cockrell, 327 F.3d 429, 431 (5th Cir. 2003). When a district court denies a habeas petition on procedural grounds without reaching the movant’s underlying constitutional claim, a Certificate of Appealability should issue when the movant shows “that jurists of reason would find it debatable whether the [motion] 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.” Id. The Supreme Court has held that a Certificate of Appealability is a “jurisdictional prerequisite” and a court of appeals lacks jurisdiction to rule on the merits until a Certificate of Appealability has been issued. Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). Movant’s Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 was denied because he failed to raise issues with any merit. Movant has not shown that the decision denying his § 2255 motion was wrong or that jurists of reason would find the assessment of his claims or case debatable. He simply has not made a substantial showing of the denial of a constitutional right and is not entitled to a Certificate of Appealability. It is accordingly ORDERED that the motion for a Certificate of Appealability, construed from the notice of appeal, is DENIED. All future motions should be filed with the Clerk of the United States Court of Appeals for the Fifth Circuit.

SIGNED at Beaumont, Texas, this 4th day of October, 2023.

MARCIA A. CRONE UNITED STATES DISTRICT JUDGE