HAYES v. USA

Filing 8

ORDER denying 7 MOTION for CERTIFICATE OF APPEALABILITY by Petitioner MAURICE LARON HAYES. Signed by Chief Judge Barbara B. Crabb on 7/13/2009. (arw)

IN THE UNITED STATES DISTRICT COURT FO R THE WESTERN DISTRICT OF WISCONSIN --------------------------------------------U N IT E D STATES OF AMERICA, ORDER Plaintiff, v. M A U R IC E LARON HAYES, D efendan t. --------------------------------------------O n June 29, 2009, I denied defendant Maurice Laron Hayes's motion for post conviction relief under 28 U.S.C. § 2255 because I found that his counsel was not ineffective at his sentencing. Now defendant has filed a motion for a certificate of appealability. This certificate is a prerequisite for appeal of the denial of defendant's motion for post-conviction relief brought pursuant to 28 U.S.C. § 2255. See 28 U.S.C. § 2253(c)(1)(A); Fed. R. App. P . 22. A certificate of appealability shall issue "only if the applicant has made a substantial sh ow i n g of the denial of a constitutional right." § 2253(c)(2). Before issuing a certificate of app ealability, a district court must find that the issues the applicant wishes to raise are ones th at "are debatable among jurists of reason; that a court could resolve the issues [in a 08-cr-26-bbc 09-cv-208-bbc

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different manner]; or that the questions are adequate to deserve encouragement to proceed further." Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983). "[T]he standard governing the issu an ce of a certificate of appealability is not the same as the standard for determining w h eth er an appeal is in good faith. It is more demanding." Walker v. O'Brien, 216 F.3d 62 6, 631 (7th Cir. 2000). Defendant continues to argue that his counsel was ineffective at sentencing. In my Ju n e 29 decision, I carefully considered all of defendant's arguments that his counsel was ineffective. I concluded that he had not shown that his counsel was ineffective according to S trickland v. Washington, 466 U.S. 668 (1984). I found that his attorney acted properly an d that defendant had not shown any prejudice because of his counsel's representation. Therefore, defendant has not made a substantial showing of the denial of a constitutional right and I will deny his request for a certificate of appealability.

ORDER IT IS ORDERED that defendant Maurice Laron Hayes's motion for a certificate of

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appealability, dkt. #7, is DENIED. E n tered this 13t h day of July, 2009. B Y THE COURT:

__________________________________ B AR B AR A B. CRABB D istrict Judge

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