McWhorter v. Madigan

Filing 24

ORDER denying 23 Motion for Certificate of Appealability. Signed by Judge David R. Herndon on 10/18/2016. (dsw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
KEVIN McWHORTER,
Petitioner,
vs.

Civil No. 13-cv-1303-DRH-CJP

LISA MADIGAN,
Respondent.
ORDER
HERNDON, District Judge:
Pending before the Court is petitioner Kevin McWhorter’s motion for a
certificate of appealability (Doc. 23) in relation to the Court’s denial of his motion
to alter or amend judgment pursuant to FEDERAL RULE OF CIVIL PROCEDURE
59(e) (Docs. 21, 22). Based on the record and the following, the Court declines to
issue a certificate of appealability.
As with section 2254 petitions, motions under Rule 60(b) or 59(e) require a
certificate of appealability to appeal. See West v. Schneiter, 485 F.3d 393, 394
(7th Cir. 2007) (appeal of Rule 60(b) motions in habeas cases require certificate);

see also Jackson v. Albany Appeal Bureau Unit, 442 F.3d 51, 53–54 (2d Cir.
2006) (certificate required for appeal from Rule 59(e) motion where underlying
judgment is of habeas petition). A certificate of appealability is not granted as a
matter of right and instead may only be granted “if the applicant has made a
substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).

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A substantial showing occurs when “reasonable jurists could debate whether (or,
for that matter, agree that) the [motion] should have been resolved in a different
matter or that the issues presented were adequate to deserve encouragement to
proceed further.” Resendez v. Knight, 653 F.3d 445, 446 (7th Cir. 2011) (citing

Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000)).
In his Rule 59(e) motion, McWhorter argued the Court committed error
when it failed to hold an evidentiary hearing with regard to the claim that the
prior state-court conviction used to enhance his federal sentence was obtained in
violation of the Sixth Amendment, as set forth in Gideon v. Wainwright, 372 U.S.
335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963) (failure to appoint counsel). In denying
the motion, the Court concluded that, even assuming the petitioner could
establish diligence in his attempt to develop the record, he was not entitled to an
evidentiary hearing because the record conclusively demonstrated that he was not
entitled to relief.
The Court has reviewed the record and the order denying the Rule 59(e)
motion. The Court finds no basis for a determination that the decision was

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debatable or incorrect. Accordingly, the motion for a certificate of appealability is
DENIED.
IT IS SO ORDERED.
Signed this 18th day of October, 2016.

Digitally signed by
Judge David R. Herndon
Date: 2016.10.18
15:22:42 -05'00'
United States District Judge

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