LEON SANCHEZ, JULIO JOSE v. USA

Filing 23

ORDER denying 21 Motion for re-issuance of a Certificate of Appealability. Signed by Chief Judge Barbara B. Crabb on 6/19/09. (vob)

IN THE UNITED STATES DISTRICT COURT FO R THE WESTERN DISTRICT OF WISCONSIN --------------------------------------------U N IT E D STATES OF AMERICA, ORDER Plaintiff, 08-cv-243-bbc 06-cr-88-jcs v. JU L IO JOSE LEON SANCHEZ, D efendan t. ---------------------------------------------

O n June 9, 2008, I denied defendant Julio Jose Leon Sanchez's motion for postcon viction relief brought pursuant to 28 U.S.C. § 2255. On August 7, 2008, defendant filed a notice of appeal from my decision. On August 12, 2008, I granted him leave to proceed on appeal in forma pauperis and issued a certificate of appealability. O n February 25, 2009, the court of appeals vacated the certificate of appealability that I had issued. The court of appeals stated in pertinent part: T his certificate does not comply with 28 U.S.C. § 2253(c) because it does not identify the issue for appeal or state why that issue satisfies the requirement of subsection (b)(2) that the app eal present a "substantial showing of the denial of a con stitution al right." 1

T he court then found that defendant was not entitled to a certificate of appealability because no ne of the arguments presented by defendant were substantial and dismissed his appeal. O n April 1, 2009, the mandate from the court of appeals was entered in this court. O n April 24, 2009, defendant filed a motion for re-issuance of a certificate of app ealability, dkt.#21, with an affidavit, dkt. #22. Defendant asks that I re-issue a

certificate of appealability in compliance with 28 U.S.C. 2253(c)(3) and (b)(2). U nfortunately, defendant has misunderstood the court of appeals order. After vacating the certificate of appealability, the court of appeals found that defendant was not entitled to a certificate of appealability under the applicable statute and dismissed his appeal. Because defendan t's certificate of appealability was denied by the court of appeals, I must deny his request for the re-issuance of a certificate of appealability.

ORDER IT IS ORDERED that defendant Julio Jose Leon Sanchez's motion for re-issuance of a certificate of appealability, dkt. #21, is DENIED. E n tered this 19th day of June, 2009. BY THE COURT: /s/ _ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ B AR B AR A B. CRABB D istrict Judge 2

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