Weldon v. United States of America

Filing 46

ORDER declining to issue a certificate of appealability. Signed by Judge David R. Herndon on 11/29/16. (klh)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS

SCOTT WELDON,
Petitioner,
v.

No. 14-0691-DRH

UNITED STATES OF AMERICA,
Respondent.

ORDER
HERNDON, District Judge:
This matter comes before the Court for case management. Based on the
reasons the Court stated on the record in denying Weldon’s 28 U.S.C. § 2255
petition and the following, the Court DECLINES to issue a certificate of
appealability in this matter. On November 29, 2016, the Court held a hearing
regarding Weldon’s 28 U.S.C. § 2255 petition which was on remand from the
Seventh Circuit Court of Appeals (Docs. 40, 42 & 44). Appointed counsel Jerry
Brown, appeared for Weldon and Assistant United States Attorney Robert Garrison
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appeared for the government. During the hearing the Court orally denied and
dismissed with prejudice Weldon’s petition.
Under the 2009 Amendments to Rule 11(a) of THE RULES GOVERNING SECTION
2255 PROCEEDINGS, the “district court must issue or deny a certificate of
appealability when it enters a final order adverse to the applicant.” Thus, the Court
must determine whether petitioner’s claims warrant a certificate of appealability
pursuant to 28 U.S.C. § 2253(c)(2).
A habeas petitioner does not have an absolute right to appeal a district
court’s denial of his habeas petition; he may appeal only those issues for which a
certificate of appealability have been granted.

See Sandoval v. United States, 574

F.3d 847, 852 (7th Cir. 2009). A habeas petitioner is entitled to a certificate of
appealability only if he can make a substantial showing of the denial of a
constitutional right. Miller-El v. Cockrell, 537 U.S. 322, 336 (2003); 28 U.S.C. §
2253(c)(2). Under this standard, petitioner must demonstrate 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 presented were
‘adequate to deserve encouragement to proceed further.’” Id. (quoting Slack v.

McDaniel, 529 U.S. 473, 484 (2000)).
As to Weldon’s claims, the Court finds that reasonable jurists would not
debate that the petition does not present a valid claim of the denial of a
constitutional right.

Reasonable jurists could not debate that the petition should

have been resolved in a different manner, as petitioner’s claims of ineffective
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assistance of counsel did not demonstrate resulting prejudice. Therefore, the Court
declines to certify any issues for review pursuant to 28 U.S.C. §2253(c).
IT IS SO ORDERED.
Signed this 29th day of November, 2016.

Digitally signed by
Judge David R. Herndon
Date: 2016.11.29
14:54:56 -06'00'
United States District Judge

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