Gerdts v. USA
Filing
20
MEMORANDUM OPINION AND ORDER DENYING 1 § 2255 PETITION, DENYING AS MOOT 9 MOTION FOR APPOINTMENT OF COUNSEL, AND DISMISSING CASE WITH PREJUDICE. The Court DIRECTS the Clerk to enter a separate judgment order in favor of the United States and DENIES issuing a certificate of appealability. Signed by Senior Judge Irene M. Keeley on 7/6/2022. (Copy Gerdts via certified mail) (jmm) (Additional attachment(s) added on 7/6/2022: # 1 Certified Mail Return Receipt) (jmm).
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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
BRIAN GERDTS,
Petitioner,
v.
CIVIL ACTION NO. 1:19CV94
CRIMINAL ACTION NOS. 1:98CR24
1:99CR36
(Judge Keeley)
UNITED STATES OF AMERICA,
Respondent.
MEMORANDUM OPINION AND ORDER DENYING § 2255 PETITION,
DENYING AS MOOT MOTION FOR APPOINTMENT OF COUNSEL,
AND DISMISSING CASE WITH PREJUDICE
Pending before the Court is the pro se motion filed pursuant
to 28 U.S.C. § 2255 by the petitioner, Brian Gerdts (“Gerdts”),
seeking to vacate, set aside, or correct his sentence (1:98CR24,
Dkt. No. 75; 1:99CR36, Dkt. No. 39; 1:19CV94, Dkt. No. 1), and a
motion for appointment of counsel (1:98CR24, Dkt. No. 82; 1:99CR36,
Dkt. No. 47; 1:19CV94, Dkt. No. 9). For the reasons that follow,
the Court DENIES his § 2255 motion, DENIES AS MOOT his motion for
appointment of counsel, and DISMISSES WITH PREJUDICE Civil Action
Number 1:19CV94.
I.
BACKGROUND
This case arises from Gerdts’s armed robbery of three United
States Post Offices in April, June, and July 1998. On April 24,
1998, Gerdts and Rhonda Stout (“Stout”) entered the United States
Post Office in Pullman, West Virginia and placed a sign reading
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GERDTS V. UNITED STATES
1:19CV94/1:98CR24/1:99CR36
MEMORANDUM OPINION AND ORDER DENYING § 2255 PETITION,
DENYING AS MOOT MOTION FOR APPOINTMENT OF COUNSEL,
AND DISMISSING CASE WITH PREJUDICE
“CLOSED UNTIL NOON” on the door (Dkt. No. 73 at 17).1 Gerdts then
located Postmaster T.M. in the work area and held a semi-automatic
pistol to his neck, bound and gagged him with duct tape, stole his
keys and wallet, and locked him in a restroom. Id. Gerdts then
stole sixty-nine (69) blank postal money orders, a money order
imprinter, and $135 cash. Id. Postmaster T.M. heard Gerdts talking
to another person during the robbery and a local woman later
reported that she had been turned away from the Pullman Post Office
by Stout. Id.
Shortly thereafter, law enforcement officers connected Gerdts
and Stout to the Pullman robbery. Id. at 12-13, 19. A forensic lab
identified the couple’s fingerprints on the “CLOSED UNTIL NOON”
sign; a local citizen identified Gerdts from a police sketch; and
law enforcement officers located the vehicle connected to the
robbery at Stout’s residence. Id. Moreover, using fictious names
and forms of identification, Stout had cashed several of the
Pullman
money
orders
in
various
locations
throughout
West
Virginia, Pennsylvania, and New Jersey. Id. On June 2, 1998, a
Unless otherwise noted, all docket references refer to Criminal Action
Number 1:98CR24.
1
2
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GERDTS V. UNITED STATES
1:19CV94/1:98CR24/1:99CR36
MEMORANDUM OPINION AND ORDER DENYING § 2255 PETITION,
DENYING AS MOOT MOTION FOR APPOINTMENT OF COUNSEL,
AND DISMISSING CASE WITH PREJUDICE
grand jury sitting in the Northern District of West Virginia named
Gerdts and Stout in a two-count indictment related to the Pullman
robbery (Dkt. No. 3).2
Thereafter, on June 23, 1998, while still at large, Gerdts
robbed the United States Post Office in Malaga, New Jersey (Dkt.
No. 73 at 18). As Stout waited nearby, he held Postmaster J.S. at
gunpoint and stole twenty-one (21) blank postal money orders and
$459.20 in cash. Id. Stout later cashed the majority of the Malaga
money orders throughout Ohio, using the same fictitious names and
forms of identification she previously had used following the
Pullman robbery. Id. at 13.
Finally, on July 27, 1998, Gerdts robbed the United States
Post Office in Aurora, West Virginia. Id. at 18-19. Again, as Stout
waited nearby, he held Postmaster H.S. at gunpoint and stole fortyfour (44) blank postal money orders and $347 in cash. Id.
Less than a month later, law enforcement officers located
Gerdts and Stout in Lakewood, New York on August 7, 1998. Id. at
14, 20. Gerdts attempted to flee while brandishing the same semi
The grand jury charged them with aiding and abetting the armed robbery
of a United States Post Office and use of a firearm in relation to a
crime of violence (Dkt. No. 3).
2
3
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GERDTS V. UNITED STATES
1:19CV94/1:98CR24/1:99CR36
MEMORANDUM OPINION AND ORDER DENYING § 2255 PETITION,
DENYING AS MOOT MOTION FOR APPOINTMENT OF COUNSEL,
AND DISMISSING CASE WITH PREJUDICE
automatic pistol he had used during each of the three robberies,
but he was quickly apprehended. Id. In the couple’s hotel room,
officers found the money order imprinter stolen during the Pullman
robbery, $12,000 in cash, blank postal money orders from the Aurora
robbery, numerous fictious identification cards bearing Stout’s
photograph, and items used to produce these identification cards.
Id. at 14. The next day, Gerdts confessed to the Pullman, Malaga,
and Aurora robberies. Id.
Following Gerdts’s arrest and confession, the grand jury in
the Northern District of West Virginia returned a Superseding
Indictment against him and Stout, charging him with aiding and
abetting the armed robbery of a United States Post Office, in
violation of 18 U.S.C. §§ 2114(a) and 2 (Count One); use of a
firearm in relation to a violent felony, in violation of 18 U.S.C.
§ 924(c) (Count Two); aiding and abetting the armed robbery of a
United States Post Office, in violation of 18 U.S.C. §§ 2114(a)
and 2 (Count Three); and use of a firearm in relation to a violent
felony, in violation of 18 U.S.C. § 924(c) (Count Four) (Dkt. No.
20). Counts One and Two related to the Pullman robbery, while
Counts Three and Four related to the Aurora robbery. Id.
4
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GERDTS V. UNITED STATES
1:19CV94/1:98CR24/1:99CR36
MEMORANDUM OPINION AND ORDER DENYING § 2255 PETITION,
DENYING AS MOOT MOTION FOR APPOINTMENT OF COUNSEL,
AND DISMISSING CASE WITH PREJUDICE
Meanwhile, in the District of New Jersey, Gerdts was charged
by criminal complaint with aiding and abetting the armed robbery
of the Malaga, New Jersey Post Office, in violation of 18 U.S.C.
§§ 2114 and 2 (1:99CR36, Dkt. No. 1 at 2-7). Then, on September 2,
1999, Gerdts was named in an information containing the same charge
and consented to the transfer of his New Jersey case to this Court
for purposes of plea and sentencing. Id. at 8-11.3
On September 23, 1999, Gerdts pled guilty to Counts Two and
Four of the Superseding Indictment in Criminal Action Number
1:98CR24, and to Count One of the Information in Criminal Action
Number 1:99CR36 (Dkt. No. 42). On December 14, 1999, the Court
sentenced him to 60 months of imprisonment on Count Two (1:98CR24),
120 months of imprisonment on Count Four (1:98CR24), and 175 months
of
imprisonment
on
Count
One
(1:99CR36),
all
to
be
served
consecutively for a total sentence of 475 months of imprisonment
(Dkt. No. 49). The Fourth Circuit later affirmed his convictions
and sentence on January 16, 2001 (Dkt. No. 58).4
Upon transfer, Gerdts’s New Jersey case became Criminal Action Number
1:99CR36.
4 Gerdts is currently incarcerated at United States Penitentiary Atwater
and, with the inclusion of good conduct credit, has a projected release
3
5
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GERDTS V. UNITED STATES
1:19CV94/1:98CR24/1:99CR36
MEMORANDUM OPINION AND ORDER DENYING § 2255 PETITION,
DENYING AS MOOT MOTION FOR APPOINTMENT OF COUNSEL,
AND DISMISSING CASE WITH PREJUDICE
Nearly twenty years later, on April 19, 2019, Gerdts filed a
motion pursuant to 28 U.S.C. § 2255 to vacate, set aside, or
correct his sentence, asserting that his § 924(c) convictions in
Criminal
Action
Number
1:98CR24
should
be
vacated
because,
following the decision of the Supreme Court of the United States
in United States v. Davis, 139 S. Ct. 2319 (2019), the offense
upon which they were predicated no longer qualifies as a “crime of
violence” (Dkt. No. 75).
II.
STANDARD OF REVIEW
28 U.S.C. § 2255(a) permits a federal prisoner who is in
custody to assert the right to be released if (1) “the sentence
was imposed in violation of the Constitution or laws of the United
States,” (2) “the court was without jurisdiction to impose such
sentence,” or (3) “the sentence was in excess of the maximum
authorized by law, or is otherwise subject to collateral attack.”
A petitioner bears the burden of proving any of these grounds by
a preponderance of the evidence. See Miller v. United States, 261
F.2d 546, 547 (4th Cir. 1958).
date of July 7, 2038. See Federal Bureau of Prisons, Inmate Locator
https://www.bop.gov/inmateloc/ (results for register number 09475-055).
6
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GERDTS V. UNITED STATES
1:19CV94/1:98CR24/1:99CR36
MEMORANDUM OPINION AND ORDER DENYING § 2255 PETITION,
DENYING AS MOOT MOTION FOR APPOINTMENT OF COUNSEL,
AND DISMISSING CASE WITH PREJUDICE
III. DISCUSSION
Gerdts pled guilty to two counts of using a firearm during a
crime of violence, in violation of 18 U.S.C. § 924(c) (Counts Two
and Four). As charged in Counts One and Three of the Superseding
Indictment, the relevant underlying crime of violence was aiding
and abetting the armed robbery of a United States Post Office, in
violation of 18 U.S.C. §§ 2114(a) and (2). Gerdts asserts that,
because this offense no longer qualifies as a crime of violence,
his § 924(c) convictions should be vacated. As the Court explains
below, he is incorrect.
A.
Applicable Law
Pursuant to 18 U.S.C. § 924(c), a person who “uses or carries”
a firearm “during and in relation to any crime of violence,” or
who “possesses” a firearm “in furtherance of any such crime,” may
be separately convicted of both the underlying crime of violence
and the use, carrying, or possession of that firearm. See United
States v. Bryant, 949 F.3d 168, 172 (4th Cir. 2020). Section
924(c)(3) defines a crime of violence as a felony offense that:
(A)
has as an element the use, attempted use, or
threatened use of physical force against the person
or property of another, or
7
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GERDTS V. UNITED STATES
1:19CV94/1:98CR24/1:99CR36
MEMORANDUM OPINION AND ORDER DENYING § 2255 PETITION,
DENYING AS MOOT MOTION FOR APPOINTMENT OF COUNSEL,
AND DISMISSING CASE WITH PREJUDICE
(B)
that by its nature, involves a substantial risk
that physical force against the person or property
of another may be used in the course of committing
the offense.
Subsections 924(c)(3)(A) and (B) are commonly referred to as “the
force clause” and “the residual clause,” respectively. United
States v. Fuertes, 805 F.3d 485, 498 (4th Cir. 2015). As Gerdts
correctly points out, in United States v. Davis, the Supreme Court
invalidated the residual clause of § 924(c) as unconstitutionally
vague. 139 S. Ct. at 2323. Thus, for an offense to qualify as a
“crime of violence” it must satisfy § 924(c)’s force clause.
To determine whether an offense qualifies as a crime of
violence under the force clause, the Court applies the categorical
approach or the modified categorical approach, depending on the
nature of the offense. United States v. Mathis, 932 F.3d 242, 264
(4th
Cir.
2019).
The
categorical
approach
applies
when
the
predicate statute “sets out a single (or ‘indivisible’) set of
elements to define a single crime.” Mathis v. United States, 579
U.S. 500, 505-06 (2016). Under this approach, the Court disregards
the defendant’s actual conduct and considers whether the minimum
conduct to sustain a conviction under the statute necessarily
8
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GERDTS V. UNITED STATES
1:19CV94/1:98CR24/1:99CR36
MEMORANDUM OPINION AND ORDER DENYING § 2255 PETITION,
DENYING AS MOOT MOTION FOR APPOINTMENT OF COUNSEL,
AND DISMISSING CASE WITH PREJUDICE
requires the use, attempted use, or threatened use of force.
Bryant, 949 F.3d at 172–73.
The
divisible
modified
statutes
categorical
that
set
approach,
out
however,
“potential
applies
elements in
to
the
alternative,” and so includes “multiple, alternative versions of
the crime.” Descamps v. United States, 570 U.S. 254, 257 (2013).
Under the modified approach, the Court examines a limited class of
documents, including the indictment, jury instructions, or plea
agreement
and
colloquy
to
determine
“which
of
the
statute’s
alternative elements formed the basis of the defendant’s prior
conviction.”
Id.
at
257.
It
then
applies
the
traditional
categorical approach to determine whether that crime constitutes
a crime of violence under § 924(c)’s force clause. Mathis, 579
U.S. at 506.
B.
Armed Robbery of a United States Post Office is a Crime of
Violence under § 924(c)’s Force Clause
Gerdts’s § 924(c) convictions are predicated on his violation
of 18 U.S.C. § 2114(a). Under that statute:
A person who assaults any person having lawful charge,
control, or custody of any mail matter or of any money
or other property of the United States, with intent to
rob, steal, or purloin such mail matter, money, or other
9
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GERDTS V. UNITED STATES
1:19CV94/1:98CR24/1:99CR36
MEMORANDUM OPINION AND ORDER DENYING § 2255 PETITION,
DENYING AS MOOT MOTION FOR APPOINTMENT OF COUNSEL,
AND DISMISSING CASE WITH PREJUDICE
property of the United States, or robs or attempts to
rob any such person of mail matter, or of any money, or
other property of the United States, shall, for the first
offense, be imprisoned not more than ten years; and if
in effecting or attempting to effect such robbery he
wounds the person having custody of such mail, money, or
other property of the United States, or puts his life in
jeopardy by the use of a dangerous weapon, or for a
subsequent offense, shall be imprisoned not more than
twenty-five years.
18 U.S.C. § 2114(a).
According to the Fourth Circuit, § 2114(a) is divisible into
at least two parts: “a basic version of the crime in the first
clause (before the semicolon) and an aggravated version of the
crime with an enhanced maximum penalty in the second clause (after
the semicolon).” United States v. Bryant, 949 F.3d 168, 174 (4th
Cir. 2020). Because the aggravated offense “sets forth additional
elements—‘wound[ing]’ or placing the ‘life [of the victim] in
jeopardy by the use of a dangerous weapon’—that must be established
in order to trigger a separate, enhanced punishment,” it is an
alternative version of a § 2114(a) offense. United States v.
Wilson, 2021 WL 5826376, at *4 (D. Md. Dec. 8, 2021) (quoting 18
U.S.C. § 2114(a)).
10
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GERDTS V. UNITED STATES
1:19CV94/1:98CR24/1:99CR36
MEMORANDUM OPINION AND ORDER DENYING § 2255 PETITION,
DENYING AS MOOT MOTION FOR APPOINTMENT OF COUNSEL,
AND DISMISSING CASE WITH PREJUDICE
Because § 2114(a) is divisible, the Court must apply the
modified categorical approach to determine (1) whether the basic
or aggravated version of the offense served as the basis for
Gerdts’s § 924(c) conviction, and (2) whether that version of the
offense categorically qualifies as a crime of violence under §
924(c)’s force clause.
A review of the record in this case establishes that the
aggravated
§ 2114(a)
offense
underlies
Gerdts’s
§
924(c)
convictions. Counts One and Three of the Superseding Indictment
specifically allege that Gerdts violated § 2114(a) by assaulting
“a person having lawful charge, custody and control of the United
States mail matter, money and other property of the United States,
with intent to rob, steal and purloin said mail matter, money and
other property of the United States,” and in doing so “put the
life of [a postmaster] in jeopardy by the use of a dangerous
weapon, that is a semi-automatic pistol” (Dkt. No. 20 at 1, 3)
(emphasis
added).
Moreover,
in
the
plea
agreement,
Gerdts
stipulated to robbing each of the Pullman, Malaga, and Aurora Post
Offices using a firearm (Dkt. No. 42 at 5). And during his plea
colloquy he confirmed the accuracy of the Government’s account of
11
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GERDTS V. UNITED STATES
1:19CV94/1:98CR24/1:99CR36
MEMORANDUM OPINION AND ORDER DENYING § 2255 PETITION,
DENYING AS MOOT MOTION FOR APPOINTMENT OF COUNSEL,
AND DISMISSING CASE WITH PREJUDICE
his offense conduct, including that, during each of the three
robberies, he held the attendant postmaster at gunpoint with a
.22-caliber semi-automatic pistol (Dkt. No. 56 at 44:7-11).
According to the Fourth Circuit, this aggravated offense
categorically qualifies as a crime of violence under § 924(c)’s
force clause. See United States v. Bryant, 949 F.3d at 179-180
(“[Section]
2114(a)’s
requirement
that
the
defendant
use
a
dangerous weapon to put the victim’s life in jeopardy ensures that
at least the threat of physical force is present”). Every court of
appeals to have addressed this question has reached the same
conclusion. See United States v. Buck, 23 F.4th 919, 930 (9th Cir.
2022); United States v. Castro, 4 F.4th 345, 352 (5th Cir. 2021);
United States v. Knight, 936 F.3d 495, 498-99 (6th Cir. 2019);
United States v. Enoch, 865 F.3d 575, 580 (7th Cir. 2017); In re
Watt, 829 F.3d 1287, 1290 (11th Cir. 2016). Thus, the Supreme
Court’s invalidation of § 924(c)’s residual clause in Davis has no
impact
on
predicated
Gerdts’s
on
the
§ 924(c)
convictions,
aggravated
offense
both
in
of
which
§ 2114(a),
which
constitutes a crime of violence under § 924(c)’s force clause.
12
are
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GERDTS V. UNITED STATES
1:19CV94/1:98CR24/1:99CR36
MEMORANDUM OPINION AND ORDER DENYING § 2255 PETITION,
DENYING AS MOOT MOTION FOR APPOINTMENT OF COUNSEL,
AND DISMISSING CASE WITH PREJUDICE
C.
Aiding and Abetting the Armed Robbery of a United States Post
Office is a Crime of Violence
Gerdts next contends that there is no valid predicate offense
for his § 924(c) convictions because Counts One and Three of the
Superseding Indictment charged him with violating § 2114(a) under
an aiding and abetting theory (Dkt. No. 19 at 3-6). But in United
States v. Ali, 991 F.3d 561, 574 (4th Cir. 2021), the Fourth
Circuit conclusively held that “aiding and abetting a crime of
violence is also categorically a crime of violence.” Id. As it
explained,
[a]iding and abetting is not a standalone criminal
offense—rather, it simply describes the way in which a
defendant's conduct resulted in the violation of a
particular law. [18 U.S.C. § 2] does not set forth an
essential element of an offense, so aiding and abetting
a crime has the exact same elements as the principal
offense. Because there are no new elements on which the
categorical approach can operate, it is impossible for
the analysis of aiding and abetting a crime to come out
differently than the principal crime.
Id. (quotations omitted). Thus, aiding and abetting the armed
robbery of a United States Post Office is a valid predicate offense
under § 924(c)’s force clause and Gerdts’s argument fails as a
matter of law.
13
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GERDTS V. UNITED STATES
1:19CV94/1:98CR24/1:99CR36
MEMORANDUM OPINION AND ORDER DENYING § 2255 PETITION,
DENYING AS MOOT MOTION FOR APPOINTMENT OF COUNSEL,
AND DISMISSING CASE WITH PREJUDICE
IV.
MOTION FOR APPOINTMENT OF COUNSEL
On July 12, 2019, Gerdts filed a motion for the appointment
of counsel (1:98CR24, Dkt. No. 82; 1:99CR36, Dkt. No. 47; 1:19CV94,
Dkt. No. 9). In support, he asserts that without counsel he is
incapable of litigating this matter and that his prior filings
have been prepared by another inmate who can no longer aid him in
this proceeding. Id.
There is no constitutional right to appointed counsel in a
§ 2255 proceeding. Pennsylvania v. Finley, 481 U.S. 551, 555
(1987). “[T]he right to appointed counsel extends to the first
appeal of right and no further.” Id. The Court should appoint
counsel to represent an indigent defendant only after a showing of
particular need or exceptional circumstances has been made. See 28
U.S.C. § 1915(e)(1); Cook v. Bounds, 518 F.2d 779 (4th Cir. 1975).
“The question of whether such circumstances exist in any particular
case hinges on characteristics of the claim and the litigant.”
Whisenant v. Yuam, 739 F.2d 160, 163 (4th Cir 1984). Nonetheless,
the Rules Governing Section 2255 Proceedings of the United States
District Courts require that counsel be appointed in certain
circumstances, such as upon a determination that an evidentiary
14
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GERDTS V. UNITED STATES
1:19CV94/1:98CR24/1:99CR36
MEMORANDUM OPINION AND ORDER DENYING § 2255 PETITION,
DENYING AS MOOT MOTION FOR APPOINTMENT OF COUNSEL,
AND DISMISSING CASE WITH PREJUDICE
hearing is required or if necessary for effective discovery. See
Rules 6(a) and 8(c) of the Rules Governing § 2255 Proceedings.
Here, Gerdts has not established a particularized need for
counsel or exceptional circumstances justifying such appointment.
According
to
his
presentence
investigation
report,
Gerdts
completed high school and several community college courses. But
his lack of legal training does not establish a particular need or
an exceptional circumstance that would justify the appointment of
counsel in this case; he has demonstrated his ability to pursue
the claims raised in his § 2255 motion in the absence of counsel
by filing his reply brief while reportedly no longer receiving aid
from a fellow inmate. Nor does the Court require an evidentiary
hearing as discovery is unnecessary. Gerdts’s arguments, which are
legal in nature and do not depend on resolution of contested facts.
Therefore, Gerdts is not entitled to the appointment of counsel
and the Court DENIES AS MOOT his motion (1:98CR24, Dkt. No. 82;
1:99CR36, Dkt. No. 47; 1:19CV94, Dkt. No. 9).
15
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GERDTS V. UNITED STATES
1:19CV94/1:98CR24/1:99CR36
MEMORANDUM OPINION AND ORDER DENYING § 2255 PETITION,
DENYING AS MOOT MOTION FOR APPOINTMENT OF COUNSEL,
AND DISMISSING CASE WITH PREJUDICE
V.
CONCLUSION
For the reasons discussed, the Court:
1.
DENIES Gerdts’s § 2255 motion (1:98CR24, Dkt. No. 75;
1:99CR36, Dkt. No. 39; 1:19CV94, Dkt. No. 1);
2.
DENIES
AS
MOOT
Gerdts’s
motion
for
appointment
of
counsel (1:98CR24, Dkt. No. 82; 1:99CR36, Dkt. No. 47;
1:19CV94, Dkt. No. 9); and
3.
DISMISSES WITH PREJUDICE Civil Action Number 1:19CV94.
It is so ORDERED.
The Court DIRECTS the Clerk to enter a separate judgment order
in favor of the United States, to transmit a copy of this order to
Gerdts by certified mail, return receipt requested, to counsel of
record by electronic means, and to strike this case from the
Court’s active docket.
VI.
Pursuant
to
NO CERTIFICATE OF APPEALABILITY
Rule
11(a)
of
the
Rules
Governing
§
2255
Proceedings, the district court “must issue or deny a certificate
of appealability when it enters a final order adverse to the
applicant” in such cases. If the court denies the certificate,
“the parties may not appeal the denial but may seek a certificate
16
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GERDTS V. UNITED STATES
1:19CV94/1:98CR24/1:99CR36
MEMORANDUM OPINION AND ORDER DENYING § 2255 PETITION,
DENYING AS MOOT MOTION FOR APPOINTMENT OF COUNSEL,
AND DISMISSING CASE WITH PREJUDICE
from the court of appeals under Federal Rule of Appellate Procedure
22.” 28 U.S.C. § 2255(a).
The Court finds it inappropriate to issue a certificate of
appealability
in
this
matter
because
Gerdts
has
not
made
a
“substantial showing of the denial of a constitutional right.” See
28 U.S.C. § 2253(c)(2). A petitioner satisfies this standard by
demonstrating
that
reasonable
jurists
would
find
that
any
assessment of the constitutional claims by the district court is
debatable or wrong and that any dispositive procedural ruling by
the
district
court
is
likewise
debatable.
See
Miller–El
v.
Cockrell, 537 U.S. 322, 336–38 (2003). Upon review of the record,
the Court concludes that Gerdts has failed to make the requisite
showing
and,
therefore,
DENIES
issuing
a
certificate
appealability.
Dated: July 6, 2022
/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE
17
of
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