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