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Stewart v. United States


June 27, 2008


The opinion of the court was delivered by: Scullin, Senior Judge



On September 8, 2005, Petitioner filed a Motion to Vacate, Set Aside or Correct the sentence that this Court imposed on him following his conviction after a jury trial for violating 18 U.S.C. § 922(g)(1), which prohibits a convicted felon from being in possession of a firearm that has traveled through interstate commerce. He thereafter filed an Amended Motion to Vacate, in which he asserted numerous grounds for relief, together with a supporting memorandum of law and supporting exhibits. See Dkt. Nos. 9, 10 (collectively, "Amended Motion").

The Government filed a memorandum of law in opposition to Petitioner's Amended Motion on March 1, 2006. See Dkt. No. 11. Petitioner thereafter filed a reply memorandum in further support of his Amended Motion, see Dkt. No. 18, as well as various supplemental exhibits, see Dkt. Nos. 16, 19, 20.

In its Memorandum-Decision and Order filed April 23, 2008, this Court denied Petitioner's Amended Motion in its entirety. See Dkt. No. 23.

Currently before the Court is Petitioner's request for a Certificate of Appealability so that he may pursue an appeal regarding the dismissal of his Amended Motion with the Second Circuit. See Dkt. No. 24.


Section 2253(c)(1) of Title 28 of the United States Code provides, in pertinent part, that, "[u]nless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from . . . (B) the final order in a proceeding under section 2255." 28 U.S.C. § 2253(c)(1)(B).*fn2 A court may only issue a Certificate of Appealability "if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). Courts have interpreted this phrase to mean that a petitioner is entitled to a Certificate of Appealability only where he demonstrates that "reasonable jurists could differ as to whether 'the petition should have been resolved in a different manner or that the issues presented were "adequate to deserve encouragement to proceed further."'" Monas v. United States, Nos. 07 Civ. 5954, 04 CR 1355, 2008 WL 483608, *4 (S.D.N.Y. Feb. 21, 2008) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983))) (other citation omitted).

In support of his application, Petitioner principally argues that this Court erroneously concluded that he had failed to establish that his counsel did not adequately prepare or present a defense regarding the deoxyribonucleic acid evidence that the prosecution used at trial. See Dkt. No. 24 at 3-8. Petitioner also suggests that a Certificate of Appealability is warranted with respect to his claim that the prosecutor improperly used expert witnesses at Petitioner's trial. See id. at 8-20.

This Court reaffirms its prior findings that Petitioner has not established either of these claims for the reasons stated in the Court's prior order, see Dkt. No. 23 at 6-11, 16-18, and concludes that Petitioner has not demonstrated that reasonable jurists could differ as to whether the Court should have resolved his Amended Motion in a different manner or that the issues that he presented deserve encouragement to proceed further.


Therefore, after carefully reviewing Petitioner's application, the other documents filed in this matter, the applicable law, and for the reasons stated herein, the Court hereby

ORDERS that Petitioner's Application for a Certificate of Appealability is DENIED; and the Court further

ORDERS that the Clerk of the Court shall serve a copy of this Order on the parties by electronic or regular mail.


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