United States of America v. Mercer

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» Case 5:14-cr-00280-PRW Document179_ Filed 11/29/18 Pagelof2

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA

UNITED STATES OF AMERICA, )
)
Plaintiff-Respondent, )
vs. ) NO. CR-14-00280-001-M
) NO. CIV-17-0207-M
DONOVAN GENE MERCER, )
)
Defendant-Movant. )
ORDER

The Tenth Circuit has remanded this matter to this Court to consider whether to
issue a certificate of appealability (“COA”) in relation to the Court’s July 16, 2018 denial
of defendant-movant Donovan Gene Mercer’s (“Mercer”) 28 U.S.C. § 2255 motion to
vacate, set aside, or correct his sentence and in relation to the Court’s October 2, 2018
denial of Mercer’s Rule 59(e) motion.

Mercer is entitled to a COA only upon making a substantial showing of the denial
of a constitutional right. See 28 U.S.C. § 2253(c)(2). Mercer can make such a showing by
demonstrating that the issues he seeks to raise are deserving of further proceedings,
debatable among jurists of reason, or subject to different resolution on appeal. See Slack
v. McDaniel, 529 U.S. 473, 484 (2000) (“[W]e give the language found in § 2253(c) the
meaning ascribed it in [Barefoot v. Estelle, 463 U.S. 880, 893 (1983)], with due note for
the substitution of the word ‘constitutional.’”). “Where a district court has rejected the
constitutional claims on the merits, . . . [t]he petitioner must demonstrate that reasonable
jurists would find the district court’s assessment of the constitutional claims debatable or

wrong.” Id.

AUTHENTICATED
U.S. GOVERNMENT.
INFORMATION

GPO

* Case 5:14-cr-00280-PRW Document179_ Filed 11/29/18 Page 2of2

Having reviewed the file in this matter, the Court concludes Mercer has not made
the requisite showing as to either the Court’s July 16, 2018 decision or the Court’s October
2, 2018, decision. Accordingly, a certificate of appealability is DENIED.

IT IS SO ORDERED.

Dated this 29th day of November, 2018.

OE HEATON
F U.S. DISTRICT JUDGE