Rosas v. United States of America

Filing 38

ORDER denying 36 Pro Se Motion for Certificate of Appealability. Signed by Judge Mark W Bennett on 10/4/2011. (copy w/nef to non-ecf filer) (des)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
WESTERN DIVISION

MARIO ROSAS,
Petitioner,
vs.
UNITED STATES OF AMERICA,

No. C 07-4097-MWB
ORDER REGARDING
PETITIONER’S PRO SE MOTION
FOR A CERTIFICATE OF
APPEALABILITY

Respondent.
______________________________

This case is before me on petitioner Mario Rosas’s September 26, 2011, pro se
Motion For A Certificate Of Appealability (docket no. 36).

Rosas requests that a

certificate of appealability be granted for all issues addressed in my Memorandum Opinion
And Order Regarding Petitioner’s Rule 60(b) Motion (docket no. 35), filed on September
9, 2011.
The requirement of a certificate of appealability is set out in 28 U.S.C.
§ 2253(c)(1), which provides, in pertinent part, as follows:
(c)(1) Unless a circuit justice or judge issues a
certificate of appealability, an appeal may not be taken to the
court of appeals from—
***
(B) the final order in a proceeding under section 2255.
28 U.S.C. § 2253(c)(1)(B); accord FED. R. APP. P. 22(b). A certificate of appealability
is required to appeal the denial of any motion that effectively or ultimately seeks habeas
corpus or § 2255 relief. United States v. Lambros, 404 F.3d 1034, 1036 (8th Cir. 2005).
To obtain a certificate of appealability on claims for § 2255 relief, a defendant must
make “a substantial showing of the denial of a constitutional right.” See 28 U.S.C.

§ 2253(c)(2); Miller-El v. Cockrell, 537 U.S. 322, 335-36 (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), cert. denied, 525 U.S. 834 (1998). “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 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.’” Miller-El,
537 U.S. Ct. at 338 (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)).
In denying Rosas’s Rule 60(b) Motion, I held, without analysis, that, to the extent
that Rosas’s arguments rested on an allegation of ineffective assistance of counsel, they
were summarily denied as a successive § 2255 motion for which Rosas had not received
authorization from the court of appeals. However, I determined that Rosas’s Rule 60(b)
claims could also be construed to allege procedural defects independent from allegations
of ineffective assistance of counsel and, on that basis, analyzed Rosas’s claims as Rule
60(b) claims rather than as successive § 2255 claims.
Assuming, without deciding, that a certificate of appealability is required to appeal
my Memorandum Opinion and Order Regarding Petitioner’s Rule 60(b) Motion (docket
no. 35), because Rosas’s Rule 60(b) Motion either was a successive § 2255 motion or
effectively and ultimately sought habeas corpus or § 2255 relief, see Lambros, 404 F.3d
at 1036, Rosas’s request for a certificate of appealability on all issues is denied. I find that
Rosas has not made a substantial showing of the denial of a constitutional right. See 28
2

U.S.C. § 2253(c)(2). Specifically, there is no showing that reasonable jurists would find
my assessment of Rosas’s claims debatable or wrong, Miller-El, 537 U.S. at 338; Cox, 133
F.3d at 569, or that any court would resolve those issues differently. Cox, 133 F.3d at
569. Therefore, Rosas does not make the requisite showing to satisfy § 2253(c) on his
claims for relief, and no certificate of appealability will issue in this case. See 28 U.S.C.
§ 2253(c)(2); FED. R. APP. P. 22(b).
Rosas’s September 26, 2011, pro se Motion For A Certificate Of Appealability
(docket no. 36) is denied.
IT IS SO ORDERED.
DATED this 4th day of October, 2011.

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

3