Hines v. United States of America

Filing 31

ORDER re 29 Notice of Appeal and 30 Notice of Appeal filed by Corey Louis Hines: The Court orders that a certificate of appealability shall not be issued as to either Notice of Appeal (Docs. 29, 30). Signed by Judge Michael J. Reagan on 9/20/12. (caa)

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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS COREY LOUIS HINES, #31660-044, Plaintiff, v. UNITED STATES OF AMERICA, Defendant. ) ) ) ) ) ) ) ) ) Case No. 11-CV-1064-MJR MEMORANDUM AND ORDER REAGAN, District Judge: This matter is before the Court on Corey Hines’ notice of appeal to the United States Court of Appeals for the Seventh Circuit. On December 5, 2011, Hines filed a motion to vacate, set aside or correct his sentence under 28 U.S C. § 2255. Roughly seven weeks later, Hines filed a motion requesting disposition of preliminary review of his § 2255 petition. On March 15, 2012, before the undersigned Judge had completed the preliminary review or issued an Order herein, Hines filed a Notice of Appeal. The filing of a Notice of Appeal divested the undersigned Judge of jurisdiction and resulted in a delay of more than four months, during which the Court of Appeals considered Hines’ appeal, ultimately dismissing it for lack of jurisdiction. The Court completed its preliminary review of the § 2255 motion on August 8, 2012, and directed the Government to respond. On September 19, 2012, the same day that the Government filed its response, Hines filed a Notice of Appeal, appealing the denial of his § 2255 motion (Doc. 29) and a second Notice of Appeal, appealing the denial of his motion that the undersigned Judge recuse himself (Doc. 30). Under Federal Rule of Appellate Procedure 22(b), in § 2255 proceedings, a petitioner cannot appeal unless a circuit judge or a district judge issues a certificate of appealability under 28 U.S.C. § 2253(c). The Court of Appeals can exercise jurisdiction only over final orders, 28 U.S.C. § 1291, and certain interlocutory and collateral orders, 28 U.S.C. § 1292. Here, the Court has issued neither a final nor an interlocutory order. Hines’ case awaits review and disposition by the district court; therefore, no assessment of his constitutional claims is available for appellate review. For these reasons, the Court finds that Hines has not stated any grounds for relief under § 2253. He has not made “a substantial showing of the denial of a constitutional right.” Accordingly, the Court ORDERS that a certificate of appealability shall NOT be issued as to either Notice of Appeal (Docs. 29, 30). IT IS SO ORDERED. DATED September 20, 2012 s/Michael J. Reagan MICHAEL J. REAGAN United States District Judge 2

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