2255 Appeal 5th Circuit ORDER

 

 

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Case: 20-60293 Document: 00515728511 Page: 1 Date Filed: 02/01/2021

 

UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT

UNITED STATES OF AMERICA,                           )
                Plaintiff – Appellee                                    )
                                                                                    )          
                                     v.                                            )         Case No. 20-60293
                                                                                    )
STEVEN DAVISON,                                                 )
               Defendant – Appellant                                ) 

 

Appeal from the United States District Court
for the Southern District of Mississippi
No. 3:20-CV-149
No. 3:17-CR-149-3


 

ORDER:

Steven Davison, federal prisoner #39251-479, seeks a certificate of appealability (“COA”) to appeal the dismissal of his March 2020 Title 28 U.S.C. § 2255 motion as unauthorized and successive and, to the extent the February 2020 § 2255 was properly filed on his behalf, the district court’s denial of that motion because his claims lacked merit. In his § 2255 motion, Davison asserted that (1) his continued imprisonment for a marihuana conviction violated his due process rights under the Fifth Amendment, (2) his counsel was ineffective for failing to raise the foregoing due process claim, United States Court of Appeals Fifth Circuit FILED February 1, 2021 Lyle W. Cayce Clerk Case: 20-60293 Document: 00515728511 Page: 1 Date Filed: 02/01/2021 No. 20-60293 2 and (3) he is in custody in violation of the Fourth Amendment.

 

This court may grant Davison a COA only if he has “made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Where the district court has denied relief on procedural grounds without reaching the underlying constitutional claims, “a COA should issue when the prisoner shows, at least, that jurists of reason would find it debatable whether the [motion] states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). Where the district court has denied the claims on the merits, “[t]he [movant] must demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong” or that “the issues presented were adequate to deserve encouragement to proceed further.” Id. (internal quotation marks and citation omitted). Davison has not made the requisite showing. See id.

 

Accordingly, his motion for a COA is DENIED. Davison’s motions for “Suspension of Rules” and “Judgment for Certificate of Appealability” are also DENIED.

 

 

____/s/ Jerry E. Smith___ JERRY E. SMITH United States Circuit Judge

 

Reconsideration

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Use PACER to see court documents.
5 th Circuit court of Appeals Case: 20-60293

U.S. District Court, District of Southern Mississippi  Doc Entries 195-211 

 

 

Case: 20-60293 Document: 00515401171 Page: 1 Date Filed: 04/30/2020

 

Letter to Davison,   April 30, 2020

United States Court of Appeals 

FIFTH CIRCUIT 
OFFICE OF THE CLERK LYLE W. CAYCE
 
Dear Mr. Davison,
 
We have docketed the appeal as shown above and ask you to use the case number above in future inquiries. Before this appeal can proceed you must apply for a certificate of appealability (COA) to comply with 28 U.S.C. § 2253. If you wish to proceed, address your motion for COA to this court. Also send a separate brief supporting the motion. In the brief set forth the issues, clearly give supporting arguments. Your "motion for COA" and "brief in support" together may not exceed a total of 30 pages. You must file 2 legible copies within 40 days from the date of this letter. If you do not do so we will dismiss the appeal, see 5TH CIR. R. 42. Note that 5TH CIR. R. 31.4 and the Internal Operating Procedures following rules 27 and 31 provides the general sense of the court on the disposition of a variety of matters, which includes that except in the most extraordinary circumstances, the maximum extension for filing briefs is 30 days in criminal cases and 40 days in civil cases."

 

 

Letter to Dee May 01, 2020

 

Case: 20-60293 Document: 00515402283 Page: 1 Date Filed: 04/30/2020

 

"Because you are not a licensed attorney, nor a party within the case, we cannot accept the Motion for Suspension of Rules submitted by you for Steven Davison. Accordingly, we take no action on your filing. We direct your attention to the decision of this court which held that a non-attorney cannot sign nor file court documents on behalf of another. See Weber v. Garza, 570 F.2d 511 (5th Cir. 1978)."

 

This response conflict with 28 U.S.C. 2255(e)  An application for a writ of habeas corpus in behalf of a prisoner who is authorized to apply for relief by motion pursuant to this section, shall not be entertained if it appears that the applicant has failed to apply for relief, by motion, to the court which sentenced him, or that such court has denied him relief, unless it also appears that the remedy by motion is inadequate or ineffective to test the legality of his detention.

 

 

 

 

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