United States District Court, D. Maryland
L. HOLLANDER, District Judge.
to 28 U.S.C. Â§ 2255; 28 U.S.C. Â§ 2253(c)(1); and Rule 22(b)
of the Federal Rules of Appellate Procedure, Yolanda Gail
Welch, petitioner has filed a "Request For A Certificate
of Appealability" ("Request, " ECF 170) to
permit her to appeal this Court's disposition of her Â§
2255 petition. See ECF 159; ECF 160. The government
opposes the Request. ECF 173. No reply has been filed, and
the time to do so has expired.
hearing is necessary to resolve the Request. For the reasons
that follow, I shall deny the Request.
Welch entered a plea of guilty on January 3, 2014, to the
offense of conspiracy to commit bank fraud, in violation of
18 U.S.C. Â§ 1349. See ECF 49; ECF 54 (Plea
Agreement); ECF 55; see also ECF 157-1 (Plea
Agreement). She was sentenced on April 21, 2014, to a
below-guidelines sentence of 33 months of incarceration. ECF
95; ECF 96. Judgment was entered on the same date (ECF 96;
ECF 97) and amended on April 24, 2014. ECF 98; ECF 99; ECF
100. No appeal was taken by Ms. Welch. The Court entered a
Second Amended Judgment on May 1, 2015 (ECF 149), upon
defendant's request ( see ECF 142; ECF 143),
solely to provide, for defendant's benefit, that "no
restitution payments may be taken from or assessed against
the defendant's Prison Inmate Account." ECF 149 at
6; see also ECF 125; ECF 126; ECF 128; ECF 146.
interim, on January 29, 2015, Ms. Welch filed a pro se Motion
To Vacate, Set Aside, Or Correct Sentence, pursuant to 28
U.S.C. Â§ 2255, (ECF 129), supported by a memorandum (ECF
129-1). She filed an amended petition on May 19, 2015. ECF
155 (collectively, the "Petition"). The government
filed an opposition, with exhibits, on May 29, 2015. ECF 157.
Ms. Welch replied on June 24, 2015. ECF 158.
Memorandum (ECF 159) and Order (ECF 160) dated August 14,
2015, I deferred ruling on Ms. Welch's claim in her
Petition that her defense attorney was ineffective because he
failed to note a direct appeal following the sentencing. As
to that claim, I concluded that an evidentiary hearing was
necessary to resolve disputed facts. ECF 159 at 2, 10-12, 26.
However, I denied all of Ms. Welch's many other claims.
Id. at 26. As to Ms. Welch's claim of
ineffective assistance of defense counsel, based on the
alleged failure to note a timely appeal, I directed the
appointment of counsel for Ms. Welch. ECF 160, Â¶
3. And, because of the unresolved issue
as to the appeal, I said in my Order, ECF 160: "At this
juncture, a Certificate of Appealability shall not
Notice docketed April 6, 2016, Ms. Welch, through court
appointed counsel, withdrew her allegation that trial counsel
was ineffective because he failed to note a direct appeal.
ECF 167. Thereafter, on April 7, 2016, I held a telephone
conference with counsel. See ECF 168. As indicated
in ECF 168, Ms. Welch's attorney was to submit a motion
requesting a Certificate of Appealability. The Request
followed on April 15, 2016 (ECF 170), pertaining to the
remaining claims denied by the Court in the Memorandum and
Order of August 14, 2015 (ECF 159; ECF 160). As noted, the
government opposes the Request. ECF 173.
of the Rules Governing Section 2255 Proceedings for the
United States District Courts is pertinent. Rule 11(a)
provides, in part: "The district court must issue or
deny a certificate of appealability when it enters a final
order adverse to the applicant." Moreover, "[i]f
the court issues a certificate, the court must state the
specific issue or issues that satisfy the showing required by
28 U.S.C. Â§ 2253(c)(2)."
28 U.S.C. Â§ 2253(c)(1)(B), "an appeal may not be taken
to the Court of Appeals from... the final order in a
proceeding under section 2255, " unless "a circuit
justice or judge issues a certificate of appealability."
Section 2253(c)(2) provides that a certificate of
appealability "may issue... only if the applicant has
made a substantial showing of the denial of a constitutional
right." In order to make such a showing, the petitioner
must demonstrate that "reasonable jurists could debate
whether... the petition should have been resolved in a
different manner... or that the issues presented were
adequate to deserve encouragement to proceed further."
Slack v. McDaniel, 529 U.S. 473, 484 (2000)
(internal quotations omitted).
view, Ms. Welch has not made the showing required by Â§
2253(c)(2). Moreover, reasonable jurists could not debate the
point. Slack, 529 U.S. at 484. Therefore, I shall
deny petitioner's Request for a Certificate of