Belk v. United States of America

Belk v. United States of America

Plaintiff:	Charles Belk
Defendant:	United States Of America
Case Number:	1:2016cv04508
Filed:	June 14, 2016
Court:	US District Court for the Southern District of New York
Office:	Foley Square Office
County:	Oneida
Presiding Judge:	Laura Taylor Swain
Nature of Suit:	Motions to Vacate Sentence
Cause of Action:	28 U.S.C. § 2255
Jury Demanded By:	None

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Date Filed	Document Text
August 22, 2017	Filing 13 MEMORANDUM OPINION AND ORDER: Petitioner's motion pursuant to 28 U.S.C. § 2255 is denied, as his 235-month ACCA sentence was not "imposed in violation of the Constitution" and is not "in excess of the maximum authorized by la w." Petitioner may not appeal this order unless "a circuit justice or judge issues a certificate of appealability." 28 U.S.C.S. § 2253(c)(1) (Lexis 2008). A certificate will be granted "if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C.S. § 2253(c)(2) (Lexis 2008); see generally United States v. Perez, 129 F.3d 255, 259- 60 (2d Cir. 1997) (discussing the standard for issuing a certificate of appealabilty). In lig ht of Jones, its subsequent vacatur, and the various conflicting decisions reached by district courts in this Circuit, the Court grants a certificate of appealability on the specific issue of whether New York first-degree robbery is a crime of violence under the ACCA after 2010 Johnson. SO ORDERED. (Signed by Judge Laura Taylor Swain on 8/22/2017) (ama)

Date Filed

Document Text

August 22, 2017

Filing 13 MEMORANDUM OPINION AND ORDER: Petitioner's motion pursuant to 28 U.S.C. § 2255 is denied, as his 235-month ACCA sentence was not "imposed in violation of the Constitution" and is not "in excess of the maximum authorized by la w." Petitioner may not appeal this order unless "a circuit justice or judge issues a certificate of appealability." 28 U.S.C.S. § 2253(c)(1) (Lexis 2008). A certificate will be granted "if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C.S. § 2253(c)(2) (Lexis 2008); see generally United States v. Perez, 129 F.3d 255, 259- 60 (2d Cir. 1997) (discussing the standard for issuing a certificate of appealabilty). In lig ht of Jones, its subsequent vacatur, and the various conflicting decisions reached by district courts in this Circuit, the Court grants a certificate of appealability on the specific issue of whether New York first-degree robbery is a crime of violence under the ACCA after 2010 Johnson. SO ORDERED. (Signed by Judge Laura Taylor Swain on 8/22/2017) (ama)

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Defendant: United States Of America
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Plaintiff: Charles Belk
Represented By:	Yuanchung Lee
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