Abernathy v. USA

Filing 2

Order Denying Certificate of Appealability Signed by District Judge Victoria A. Roberts. (CPin)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

GARY ABERNATHY,
Plaintiff,

CIVIL CASE NO: 12-12430
CRIMINAL CASE NO: 08-20103-1
HONORABLE VICTORIA A. ROBERTS

v.
UNITED STATES OF AMERICA,

Defendant.
/

ORDER DENYING PETITIONER’S CERTIFICATE OF APPEALABILITY
On December 12, 2012, the Court denied Gary Abernathy’s (“Petitioner”) pro se
petition for a writ of habeas corpus to vacate his sentence under 28 U.S.C. § 2255,
which alleges ineffective assistance of counsel. Petitioner appealed. The Sixth Circuit
remanded and holds the appeal in abeyance so that this Court can determine whether
to grant a certificate of appealability. The Court DECLINES to do so.
A certificate should issue if Petitioner demonstrates a "substantial showing of a
denial of a constitutional right." 28 U.S.C. § 2253(c)(2). To warrant a grant of the
certificate, "[t]he petitioner must demonstrate that reasonable jurists would find the
district court's assessment of the constitutional claims debatable or wrong." Slack v.
McDaniel, 529 U.S. 473, 120 S. Ct. 1595, 146 L. Ed. 2d 542 (2000).
The Court finds that reasonable jurists could not conclude that this Court's
dismissal of Petitioner's claims was debatable or wrong. Therefore, the Court denies
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Petitioner a certificate of appealability.
IT IS ORDERED.

S/Victoria A. Roberts
Victoria A. Roberts
United States District Judge
Dated: November 25, 2013
The undersigned certifies that a copy of this
document was served on the attorneys of
record and Gary Abernathy by electronic
means or U.S. Mail on November 25, 2013.
S/Carol A. Pinegar
Deputy Clerk

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