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Green v. United States

September 5, 2006

KENNETH E. GREEN, PETITIONER,
v.
UNITED STATES OF AMERICA, RESPONDENT.



The opinion of the court was delivered by: S. Arthur Spiegel United States Senior District Judge

OPINION AND ORDER

This matter is before the Court on Petitioner's Motion for Certificate of Appealability (doc. 197). For the reasons stated herein, the Court DENIES Petitioner's Motion for Certificate of Appealability and CERTIFIES that no such certificate should issue as to this Court's decisions regarding Petitioner's Motion to Vacate Sentence (docs. 186, 196, 198).

Petitioner filed his initial Motion to Vacate on September 21, 2004, alleging he received ineffective assistance of counsel, which under his theory caused him to be improperly sentenced to two consecutively running sentences (doc. 173). The Court denied Petitioner's Motion to Vacate on October 12, 2005, finding that he filed it too late (doc. 186). Shortly thereafter, Petitioner requested the Court reconsider such Order, under the theory that ineffective assistance of counsel caused him to untimely file his motion (doc. 196). The Court rejected Petitioner's argument because Petitioner had no right to counsel in the advancing a Section 2255 motion, under Pennsylvania v. Finley, 481 U.S. 551, 555 (1987) (Id.). On February 10, 2006, Petitioner filed yet another Motion (doc. 190), this time premised on several new grounds, all of which the Court rejected on the basis of untimeliness, except for Petitioner's fraud argument, which the Court found lacking in merit (doc. 198).

In the present motion Petitioner moves for a certificate of appealability as to the Court's denial of his Motion to Vacate (doc. 186). The Court does not find Petitioner's Motion well-taken, and concludes that a certificate of appealability should not issue with respect to Defendant's claims. The Sixth Circuit Court of Appeals has already reviewed and found appropriate Defendant's consecutive sixty-month sentences. United States v. John Campbell; Kenneth E Green, 317 F.3d 597, 604 (6th Cir. 2003). The Supreme Court's decision in Pennsylvania v. Finley, 481 U.S. 551, 555 (1987), bars any relief based on ineffective assistance of counsel for the untimely filing of his Motion. Finally, the Court previously found no merit to Petitioner's fraud claims. A review of the record reveals that Defendant has not made a substantial showing of the denial of a constitutional right in the alleged grounds for relief. 28 U.S.C. § 2253(c).

28 U.S.C. § 2253 requires that there be a denial of Petitioner's Constitutional Rights in order for a Court to grant a certificate of appealability in a habeas corpus action. After reviewing Petitioner's claims, the Court finds that this case does not involve a question of Petitioner's Constitutional Rights, but rather questions of untimely filings and meritless claims. Accordingly, the Court DENIES Plaintiff's Motion for Certificate of Appealability (doc. 197), and CERTIFIES that no such certificate should issue as to this Court's decisions regarding Petitioner's Motion to Vacate Sentence (docs. 186, 196, 198), because a jurist of reason would not find it debatable whether this Court is correct in its procedural ruling. Slack v. McDaniel, 529 U.S. 473, 484-85, (2000).

SO ORDERED.

20060905

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