Perfecto v. United States of America

Filing 10

ORDER DISMISSING PETITION, DENYING CERTIFICATE OF APPEALABILITY, AND DENYING LEAVE TO APPEAL IN FORMA PAUPERIS. Signed by Judge J. Daniel Breen on 11/20/17. (mbm)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
CHRISTINA ANDRES PERFECTO,
Petitioner,
v.

Civ. No. 2:16-cv-2316-JDB-egb

UNITED STATES OF AMERICA,
Respondent.
ORDER DISMISSING PETITION,
DENYING CERTIFICATE OF APPEALABILITY,
AND
DENYING LEAVE TO APPEAL IN FORMA PAUPERIS
Petitioner, Christina Andres Perfecto, filed a pro se motion to vacate, set aside, or correct
her sentence, pursuant to 28 U.S.C. § 2255 (the “Petition”). (Docket Entry (“D.E.”) 1.) By order
dated October 26, 2017, the Court directed Petitioner to show cause within twenty-one days why
the Petition should not be dismissed as untimely. (D.E. 9.) Although warned that failure to
comply with the order would result in dismissal under Federal Rule of Civil Procedure 41(b),
Petitioner did not respond to the Court’s order and the time for doing so has passed.
Accordingly, the Petition is DISMISSED. Judgment shall be entered for Respondent.
APPEAL ISSUES
A § 2255 petitioner may not proceed on appeal unless a district or circuit judge issues a
certificate of appealability (“COA”). 28 U.S.C. § 2253(c)(1); FED. R. APP. P. 22(b)(1). A COA
may issue only if the petitioner has made a substantial showing of the denial of a constitutional
right.

28 U.S.C. § 2253(c)(2)-(3).

A substantial showing is made when the petitioner

demonstrates 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 issues presented were
‘adequate to deserve encouragement to proceed further.’” Miller-El v. Cockrell, 537 U.S. 322,
336 (2003) (quoting Slack v. Daniel, 529 U.S. 473, 484 (2000)).
In this case, reasonable jurists would not debate the correctness of the Court’s decision to
dismiss the Petition. Because any appeal by Petitioner does not deserve attention, the Court
DENIES a COA.
Pursuant to Federal Rule of Appellate Procedure 24(a), a party seeking pauper status on
appeal must first file a motion in the district court, along with a supporting affidavit. FED. R.
APP. P. 24(a). However, Rule 24(a) also provides that, if the district court certifies that an appeal
would not be taken in good faith, the prisoner must file her motion to proceed in forma pauperis
in the appellate court. Id.
In this case, for the same reason it denies a COA, the Court CERTIFIES, pursuant to
Rule 24(a), that any appeal in this matter would not be taken in good faith. Leave to appeal in
forma pauperis is therefore DENIED.1
IT IS SO ORDERED this 20th day of November 2017.
s/ J. DANIEL BREEN
UNITED STATES DISTRICT JUDGE

1

If Petitioner files a notice of appeal, she must also pay the full $505 appellate filing fee
or file a motion to proceed in forma pauperis and supporting affidavit in the Sixth Circuit Court
of Appeals within thirty days.
2