LeBeau v. United States of America

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
GERALD WAYNE LEBEAU,
Petitioner,
vs.
UNITED STATES OF AMERICA,
Respondent.
5:19-CV-05011-KES
ORDER DENYING CERTIFICATE OF
APPEALABILITY
Petitioner, Gerald Wayne LeBeau, filed a motion to vacate, set aside, or
correct his sentence under 28 U.S.C. § 2255. Docket 1. The United States move
to dismiss the motion for failure to state a claim and for lack of subject matter
jurisdiction. Docket 9. This court granted respondent’s motion and dismissed
LeBeau’s motion to vacate, set aside, or correct his sentence. Docket 33.
When a district court denies a petitioner’s § 2255 motion, the petitioner
must first obtain a certificate of appealability before an appeal of that denial
may be entertained. Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003). This
certificate may be issued “only if the applicant has made a substantial showing
of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). A “substantial
showing” is one that proves “reasonable jurists would find the district court's
assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel,
529 U.S. 473, 484 (2000). Stated differently, “[a] substantial showing is a
showing that issues are debatable among reasonable jurists, a court could
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resolve the issues differently, or the issues deserve further proceedings.” Cox v.
Norris, 133 F.3d 565, 569 (8th Cir. 1997). LeBeau has not made a substantial
showing that his claims are debatable among reasonable jurists, that another
court could resolve the issues raised in his claims differently, or that a
question raised by his claims deserves additional proceedings. Thus, a
certificate of appealability is not issued.
Thus, it is ORDERED:
1. 	That a certificate of appealability is denied.
DATED April 13, 2022.
BY THE COURT:
/s/ Karen E. Schreier
KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE
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