Albarran-Martinez v. USA

Filing 9

ORDER denying as moot 5 Motion for the Goverment to Respond. Court declines to issue a certificate of appealability. Signed by District Judge Richard Voorhees on 7/29/2013. (Pro se litigant served by US Mail.)(cbb)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
STATESVILLE DIVISION
5:13-CV-00052-RLV
(5:10-CR-00005-RLV-DCK-1)
HERCULANO ALBARRAN-MARTINEZ,

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Petitioner,
vs.
UNITED STATES OF AMERICA,
Respondent.

ORDER

THIS MATTER is before the Court on Petitioner’s motion for an order requiring the
Government to respond to the claims in his motion to vacate, filed pursuant to 28 U.S.C. § 2255.
Following an initial review under Rule 4(b) of the Rules Governing Section 2255 proceedings,
the Court entered an Order denying and dismissing Petitioner’s Section 2255 motion on July 9,
2013. (Doc. No. 3). On July 12, 2013, the Clerk of Court docketed Petitioner’s motion for the
Government to respond. (Doc. No. 5). The Court finds that Petitioner’s motion seeking a
Government response should be denied as moot in light of the outright denial and dismissal of
the Section 2255 motion.
IT IS, THEREFORE, ORDERED that Petitioner’s motion seeking a Government
response is DENIED as moot. (Doc. No. 5).
IT IS FURTHER ORDERED that the Court declines to issue a certificate of
appealability as Petitioner has not made a substantial showing of a denial of a constitutional
right. See generally 28 U.S.C. § 2253(c)(2); see also Miller-El v. Cockrell, 537 U.S. 322, 336-38
(2003) (in order to satisfy § 2253(c), a “petitioner must demonstrate that reasonable jurists would
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find the district court’s assessment of the constitutional claims debatable or wrong”) (citing
Slack v. McDaniel, 529 U.S. 473, 484-85 (2000). Petitioner has failed to demonstrate both that
this Court’s dispositive procedural rulings are debatable, and that his Motion to Vacate states a
debatable claim of the denial of a constitutional right. Slack v. McDaniel, supra. As a result, the
Court declines to issue a certificate of appealability. See Rule 11(a), Rules Governing Section
2255 Proceedings for the United States District Courts, 28 U.S.C. § 2255.
IT IS SO ORDERED.
Signed: July 29, 2013

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