McDonald v. United States of America

Filing 37

OPINION and Order re 35 USCA Order of Remand. No certificate of appealability will issue for any claim or contention in this case. Signed by Judge Mark W Bennett on 10/15/2018. (des)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
CENTRAL DIVISION
CEDRIC MCDONALD,
No. C 17-3057-MWB
(CR 14-3056-MWB-1)

Petitioner,
vs.
UNITED STATES OF AMERICA,

OPINION AND ORDER
REGARDING CERTIFICATE OF
APPEALABILITY

Respondent.
___________________________
This case is before me on remand from the Eighth Circuit Court of Appeals to
consider whether a certificate of appealability should issue in light of Tiedeman v.
Benson, 122 F.3d 518 (8th Cir. 1997). I inadvertently omitted a determination on the
certificate of appealability issue in my August 20, 2018, Opinion And Order Regarding
Petitioner’s Motion Under 28 U.S.C. § 2255 To Vacate, Set Aside, Or Correct Sentence.
In that Opinion And Order, I granted petitioner McDonald’s § 2255 Motion to the extent
that his sentence of 210 months was corrected to 120 months, the maximum sentence that
could have been imposed without an ACCA enhancement; denied the part of his § 2255
Motion claiming ineffective assistance of counsel for failing to challenge the
determination that two prior second-degree robbery convictions, under Iowa law, were
also predicate ACCA offenses; and denied the part of his § 2255 Motion claiming
ineffective assistance of counsel for failing to object to the court’s use of a video that
addressed racial prejudice.
My denial, in part, of McDonald’s claims for § 2255 relief raises the question of
whether or not he is entitled to a certificate of appealability on those claims. In order to
obtain a certificate of appealability on those claims, McDonald must make a substantial

showing of the denial of a constitutional right. See Miller–El v. Cockrell, 537 U.S. 322
(2003); Garrett v. United States, 211 F.3d 1075, 1076–77 (8th Cir. 2000); Mills v.
Norris, 187 F.3d 881, 882 n.1 (8th Cir. 1999); Carter v. Hopkins, 151 F.3d 872, 873–
74 (8th Cir. 1998); Ramsey v. Bowersox, 149 F.3d 749 (8th Cir. 1998); Cox v. Norris,
133 F.3d 565, 569 (8th Cir. 1997). “A substantial showing is a showing that issues are
debatable among reasonable jurists, a court could resolve the issues differently, or the
issues deserve further proceedings.” Cox, 133 F.3d at 569. Moreover, the United States
Supreme Court reiterated in Miller–El v. Cockrell that, “‘[w]here a district court has
rejected the constitutional claims on the merits, the showing required to satisfy § 2253(c)
is straightforward: The petitioner must demonstrate that reasonable jurists would find
the district court’s assessment of the constitutional claims debatable or wrong.’” 537
U.S. at 338 (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). For essentially the
reasons set out in my August 20, 2018, Opinion And Order, I now conclude that
McDonald has failed to make a substantial showing that denial of two of his claims is
debatable among reasonable jurists, that a court could resolve any of the issues raised in
those claims differently, or that any question raised in those claims deserves further
proceedings. Consequently, a certificate of appealability is denied as to McDonald’s
claims for § 2255 relief that I denied. See 28 U.S.C. § 2253(c)(1)(B); Miller-El, 537
U.S. at 335-36; Cox, 133 F.3d at 569.
THEREFORE, no certificate of appealability will issue for any claim or contention
in this case.
IT IS SO ORDERED.
DATED this 15th day of October, 2018.

______________________________________
MARK W. BENNETT
U.S. DISTRICT COURT JUDGE
NORTHERN DISTRICT OF IOWA
2