United States District Court, D. South Carolina, Columbia Division
November 3, 2014
United States of America,
Mark Devin Partman, Defendant.
OPINION AND ORDER
CAMERON McGOWAN CURRIE, Senior District Judge.
Defendant, proceeding pro se, seeks relief in this court pursuant to 28 U.S.C. § 2255. The Government filed a response and a motion to dismiss. The court advised Defendant of the summary judgment procedure and the consequences if he failed to respond. Defendant filed his response and the matter is now before the court for ruling on the motion to dismiss.
The court has reviewed the complete record in this case. Because United States v. Hemingway, 734 F.3d 323 (4th Cir. 2013), is not a "retroactively applicable" decision of the Supreme Court; Defendant's motion was filed more than a year after the Supreme Court's decision in Descamps v. United States, 570 U.S. __, 133 S.Ct. 2276 (2013); and neither Hemingway nor Descamps have been made retroactively available to cases on collateral review, Defendant's motion is untimely. Accordingly, the court grants the Government's motion to dismiss Defendant's claim for relief.
The Government's motion to dismiss is granted. Defendant's motion for an evidentiary hearing is denied. The motion for relief under 28 U.S.C. § 2255 is dismissed with prejudice.
CERTIFICATE OF APPEALABILITY
The governing law provides that:
(c)(2) A certificate of appealability may issue... only if the applicant has made a substantial showing of the denial of a constitutional right.
(c)(3) The certificate of appealability... shall indicate which specific issue or issues satisfy the showing required by paragraph (2).
28 U.S.C. § 2253(c). A prisoner satisfies this standard by demonstrating that reasonable jurists would find this court's assessment of his constitutional claims is debatable or wrong and that any dispositive procedural ruling by the district court is likewise debatable. See Miller-El v. Cockrell, 537 U.S. 322, 336 (2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000); Rose v. Lee, 252 F.3d 676, 683 (4th Cir. 2001). In this case, the legal standard for the issuance of a certificate of appealability has not been met. Therefore, a certificate of appealability is denied.
IT IS SO ORDERED.