BROOKS, ERNEST E. III v. USA

Filing 11

ORDER Amending 3 Order on Motion to Vacate Sentence per 28 USC § 2255 to deny petitioner a certificate of appealability. Signed by District Judge Barbara B. Crabb on 5/17/2018. (elc)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - ERNEST BROOKS,
ORDER
Petitioner,
18-cv-7-bbc
02-cr-27-bbc

v.
UNITED STATES OF AMERICA,
Respondent.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - On January 31, 2018, I dismissed petitioner Ernest Brooks’s petition for a writ of
habeas corpus under 28 U.S.C. § 2255 after concluding that petitioner was attempting to
bring a successive collateral attack without first obtaining certification from the court of
appeals. Petitioner filed a notice of appeal and on March 29, 2018, I denied petitioner leave
to proceed in forma pauperis on appeal. However, I did not address whether to grant a
certificate of appealability to petitioner.
Under Rule 11 of the Rules Governing Section 2255 Proceedings, the court must
issue or deny a certificate of appealability when entering a final order adverse to a defendant.
To obtain a certificate of appealability, the applicant must make a "substantial showing of
the denial of a constitutional right." 28 U.S.C. § 2253(c)(2); Tennard v. Dretke, 542 U.S.
274, 282 (2004). This means that "reasonable jurists could debate whether (or, for that

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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) (internal quotations and citations omitted).
Although the rule allows a court to ask the parties to submit arguments on whether
a certificate should issue, it is not necessary to do so in this case because the question is not
close. No reasonable jurists would conclude that petitioner has made a substantial showing
of a denial of a constitutional right.

ORDER
IT IS ORDERED that the January 31, 2018 order denying petitioner Ernest Brook’s
petition for a writ of habeas corpus, dkt. #3, is AMENDED to DENY petitioner a certificate
of appealability. Petitioner may seek a certificate from the court of appeals under Fed. R.
App. P. 22.
Entered this 17th day of May, 2018.
BY THE COURT:
/s/
______________________________
BARBARA B. CRABB
District Judge

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