Blake v. USA

Filing 23

ORDER DENYING 17 MOTION for Certificate of Appealability filed by Byron Blake. Signed by Judge G. Patrick Murphy on 9/26/2011. (ssd)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
BYRON BLAKE,
Petitioner/Defendant,
vs.
UNITED STATES OF AMERICA ,
Respondent/Plaintiff.

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CIVIL NO. 09-555-GPM
CRIMINAL NO. 06-30146-01-GPM

MEMORANDUM AND ORDER
MURPHY, District Judge:
On July 11, 2011, this Court entered a short order denying Petitioner Byron Blake’s motion
to vacate, set aside, or correct sentence. The Order, which was issued in response to a petition for
writ of mandamus that Mr. Blake filed in the United States Court of Appeals for the Seventh Circuit,
stated that written findings and judgment would follow. On July 22, 2011, Mr. Blake filed a notice
of appeal and requested a certificate of appealability. The Court issued its written findings and
entered judgment on September 26, 2011, and now considers Mr. Blake’s request for a certificate of
appealability.
Pursuant to 28 U.S.C. § 2253, a petitioner may not proceed on appeal without a certificate of
appealability. Section 2253(c)(2) provides that a certificate of appealability may issue “only if the
applicant has made a substantial showing of the denial of a constitutional right.” Section 2253(c)(3)
further provides that “[t]he certificate of appealability under paragraph (1) shall indicate which
specific issue or issues satisfy the showing required by paragraph (2).” Because a petitioner may not
proceed on appeal without a certificate of appealability issued by either this Court or the Court of

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Appeals for the Seventh Circuit, the Court automatically construes a notice of appeal as a request for
a certificate of appealability. See FED. R. APP. P. 22(b).
This Court carefully considered Mr. Blake’s arguments and for the reasons thoroughly set
forth in the September 26, 2011, Memorandum and Order (see Doc. 21), Mr. Blake has not made a
substantial showing of the denial of a constitutional right. In fact, Mr. Blake states simply:
“Petitioner is Asking this Honorable Court for ‘Notice of Appeal’ Notice of Appeal for Certificate
of Appealability” (Doc. 17).

Accordingly, the Court DECLINES to issue a certificate of

appealability. Pursuant to Federal Rule of Appellate Procedure 22(b), Petitioner may present his
request for a certificate of appealability to the Court of Appeals for the Seventh Circuit.
IT IS SO ORDERED.
DATED: 09/26/11
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G. PATRICK MURPHY
United States District Judge

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