Perkins v. United States of America

Filing 33

ORDER DENYING ISSUANCE OF A CERTIFICATE OF APPEALABILITY by District Judge Kea W. Riggs. The Court DENIES issuing a certificate of appealability. (ve)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
HERBERT ISAAC PERKINS,
Petitioner,
v.

Nos.

1:16-cv-00714-KWR-JHR
1:07-cr-01010-KWR-1

UNITED STATES OF AMERICA,
Respondent.
ORDER DENYING ISSUANCE
OF A CERTIFICATE OF APPEALABILITY
THIS MATTER comes before the Court on the Tenth Circuit’s limited remand to consider
whether to issue a certificate of appealability. To obtain a certificate, Perkins must make “a
substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This requires
Perkins to “sho[w] that reasonable jurists could debate whether (or, for that matter, agree that) the
petition should have been resolved in a different manner or that the issue presented was ‘adequate
to deserve encouragement to proceed further.’” Miller-El v. Cockrell, 537 U.S. 322, 336 (2003)
(alteration in original) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)).
U.S. Magistrate Judge Jerry H. Ritter recommended that a certificate of appealability be
denied [Doc. 20, p. 7], and the Court adopted Magistrate Judge Ritter’s recommendations. [Doc.
27, p. 5]. Furthermore, reasonable jurists could not debate (1) that the Tenth Circuit’s partial
authorization does not contain any language authorizing review of the Hobbs Act robbery
conviction, and (2) that Melgar-Cabrera1 and Manzanares2 are binding in this case and precludes
relief. Therefore, the Court denies issuing a certificate of appealability.

1
2

United States v. Melgar-Cabrera, 892 F.3d 1053 (10th Cir. 2018).
United States v. Manzanares, 956 F.3d 1220 (10th Cir. 2020).

1

IT IS SO ORDERED.

_________________________________
KEA W. RIGGS
UNITED STATES DISTRICT JUDGE

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