Gagnon v. United States of America

Filing 32

MEMORANDUM OPINION that the court declines to issue a COA with respect to any claims as more fully set out in order. Signed by Judge C Lynwood Smith, Jr on 7/29/2015. (AHI)

FILED
2015 Jul-29 AM 10:57
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
RAYMOND ALFRED GAGNON,
vs.
UNITED STATES OF AMERICA.

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Case No. 5:13-cv-08030-CLS-HGD

MEMORANDUM OPINION
On January 16, 2015, the magistrate judge’s report and recommendation was
entered and the parties were allowed therein fourteen (14) days in which to file
objections to the recommendations made by the magistrate judge. After obtaining an
extension of time, petitioner filed timely objections to the magistrate judge’s report
and recommendation on March 26, 2015.
After careful consideration of the record in this case, the magistrate judge’s
report and recommendation and petitioner’s objections thereto, the court hereby
ADOPTS the report of the magistrate judge. The court further ACCEPTS the
recommendations of the magistrate judge that the Motion to Vacate, Set Aside or
Correct Sentence pursuant to 28 U.S.C. § 2255 be denied.
Pursuant to Rule 11 of the Rules Governing § 2255 Proceedings for the United
States District Courts, the Court has evaluated the claims within the petition for

suitability for the issuance of a certificate of appealability (COA). See 28 U.S.C.
§ 2253.
Rule 22(b) of the Federal Rules of Appellate Procedure provides that in a
§ 2255 proceeding, a petitioner cannot take an appeal unless a district judge issues
a COA. Pursuant to 28 U.S.C. § 2253(c)(2), a COA may issue only when the
petitioner “has made a substantial showing of the denial of a constitutional right.”
This showing can be established by demonstrating 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 were “adequate to deserve encouragement to
proceed further.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 1603-04,
146 L.Ed.2d 542 (2000) (citing Barefoot v. Estelle, 463 U.S. 880, 893 & n.4, 103
S.Ct. 3383, 3394-95 & n.4, 77 L.Ed.2d 1090 (1983)). For procedural rulings, a COA
will issue only if reasonable jurists could debate whether the petition states a valid
claim of the denial of a constitutional right and whether the court’s procedural ruling
was correct. Id.
The Court finds that reasonable jurists could not debate its resolution of the
claims presented in this § 2255 proceeding. For the reasons stated in the magistrate
judge’s report and recommendation, the Court DECLINES to issue a COA with
respect to any claims. Petitioner is ADVISED that he may file an application to
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proceed on appeal in forma pauperis and a request for certificate of appealability
directly with the Court of Appeals for the Eleventh Circuit.
A separate order in conformity with this Memorandum Opinion will be entered
contemporaneously herewith.
DONE this 29th day of July, 2015.

______________________________
United States District Judge

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