Pender v. USA-2255
Filing
5
MEMORANDUM OPINION. Signed by Judge Deborah K. Chasanow on 5/11/2017. (c/m 05/11/2017 jf3s, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
ANTHONY PENDER
:
v.
:
Civil Action No. DKC 09-0034
Criminal Case No. DKC 06-0083
:
UNITED STATES OF AMERICA
:
MEMORANDUM OPINION
This court issued a memorandum opinion and order denying
Petitioner’s motion to vacate, set aside, or correct sentence on
March 29, 2012 (ECF Nos. 61, 62).
appeal,
the
United
States
Court
Following the Petitioner’s
of
Appeals
for
the
Fourth
Circuit remanded the case on March 20, 2013, to further develop
the record before ruling (ECF No. 71).
The mandate was issued
May 13, 2013 (ECF No. 74).
On
October
27,
2016,
President
Barack
Obama
issued
an
Executive Grant of Clemency commuting Petitioner’s sentence to a
term of 188 months imprisonment (ECF No. 91).
This court issued an Order on May 9 directing Petitioner to
show
cause
why
his
pending
motion
to
vacate,
set
aside,
or
correct sentence should not be dismissed as moot citing United
States v. Surratt, 2017 WL 1423296 (ECF No. 92).
Petitioner,
through counsel, agreed that the pending motion pursuant to 28
U.S.C. § 2255 is moot (ECF No. 93).
Accordingly, Petitioner’s motion will be denied.
Pursuant to Rule 11(a) of the Rules Governing Proceedings
under 28 U.S.C. § 2255, the court is also required to issue or
deny a certificate of appealability when it enters a final order
adverse to the applicant.
A certificate of appealability is a
“jurisdictional
prerequisite”
earlier order.
United States v. Hadden, 475 F.3d 652, 659 (4th
Cir. 2007).
to
an
appeal
from
the
court’s
A certificate of appealability may issue “only if
the applicant has made a substantial showing of the denial of a
constitutional right.”
28 U.S.C. § 2253(c)(2).
Where the court
denies petitioner’s motion on its merits, a petitioner satisfies
this
standard
by
demonstrating
that
reasonable
jurists
would
find the court’s assessment of the claim debatable or wrong.
Slack v. McDaniel, 529 U.S. 473, 484 (2000); see also Miller-El
v. Cockrell, 537 U.S. 322, 336–38 (2003).
Upon review of the
record, the court finds that Petitioner does not satisfy the
above standard.
certificate
of
Accordingly, the court will decline to issue a
appealability
resolved against Petitioner.
on
the
issues
which
have
A separate order will follow.
/s/
DEBORAH K. CHASANOW
United States District Judge
2
been
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