David D. Larvie, Jr. v. United States of America

Filing 4

ORDER DENYING CERTIFICATE OF APPEALABILITY. Signed by U.S. District Judge Charles B. Kornmann on 05/31/2014. (SAT)

FILED

UNITED STATES DISTRICT COURT

JUN 02 2014

DISTRICT OF SOUTH DAKOTA

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CENTRAL DIVISION

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DAVID D. LARVIE, JR.
Petitioner,
-vs­

UNITED STATES OF AMERICA,
Respondent.

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CIV 14-3006

ORDER DENYING
CERTIFICATE OF APPEALABILITY

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TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT:

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This Court dismissed petitioner's motion to vacate, set aside, or correct sentence pursuant
to 28 U.S.C. § 2255. Petitioner contended that he was entitled to relief under the United States
Supreme Court's decision in Descamps v. United States, _

U.S.

133 S.Ct. 2276 (2013). I

denied the motion as untimely because Descamps has not been found by the Supreme Court to be
retroactively applicable to cases on collateral review. I further found that, even if timely filed,
Descamps does not provide any reIiefto petitioner.
Pursuant to 28 U.S.C. § 2253, a certificate of appealability may issue only if the applicant
has made a substantial showing of the denial of a constitutional right.
When the district court denies a habeas petition on procedural grounds
without reaching the prisoner's underlying constitutional claim, a COA
should issue when the prisoner shows, at least, that jurists of reason would
find it debatable whether the petition states a valid claim of the denial of a
constitutional right and that jurists of reason would find it debatable
whether the district court was correct in its procedural ruling. This
construction gives meaning to Congress' requirement that a prisoner
demonstrate substantial underlying constitutional claims and is in
conformity with the meaning of the "substantial showing" standard ...
Where a plain procedural bar is present and the district court is correct to
invoke it to dispose of the case, a reasonable jurist could not conclude
either that the district court erred in dismissing the petition or that the

petitioner should be allowed to proceed further. In such a circumstance,

no appeal would be warranted.

Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 1604, 146 L.Ed.2d 542 (2000) (emphasis

supplied). Petitioner did not and has not made a substantial showing that jurists of reason would

find it debatable whether this matter was correctly dismissed.

IT IS HEREBY CERTIFIED that there does not exist probable cause of an appealable

issue with respect to the Court's order denying petitioner's motion to vacate, set aside, or correct

sentence. Petitioner's application for a certificate of appealability is denied. This in no way

hampers the petitioner's ability to request issuance of the certificate by a circuit judge pursuant to

Fed. R. App. P. 22.
Dated this

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y of May, 2014.

BY THE COURT:

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CHARLES B. KORNMANN
United States District Judge

ATTEST:
JOSEPH HAAS, Clerk

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