UNITED STATES DISTRICT COURT DISTRICT OF SOUTH DAKOTA WESTERN DIVISION

GERALD WAYNE LEBEAU, 5:19-CV-05011-KES

Petitioner,

ORDER DENYING CERTIFICATE OF vs. APPEALABILITY

UNITED STATES OF AMERICA,

Respondent.

Petitioner, Gerald Wayne LeBeau, filed a motion to vacate, set aside, or correct his sentence under

. Docket 1. The United States move to dismiss the motion for failure to state a claim and for lack of subject matter jurisdiction. Docket 9. This court granted respondent’s motion and dismissed LeBeau’s motion to vacate, set aside, or correct his sentence. Docket 33. When a district court denies a petitioner’s § 2255 motion, the petitioner must first obtain a certificate of appealability before an appeal of that denial may be entertained. Miller-El v. Cockrell,

(2003). This certificate may be issued “only if the applicant has made a substantial showing of the denial of a constitutional right.”

(c)(2). A “substantial showing” is one that proves “reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel,

(2000). Stated differently, “[a] substantial showing is a showing that issues are debatable among reasonable jurists, a court could resolve the issues differently, or the issues deserve further proceedings.” Cox v. Norris,

(8th Cir. 1997). LeBeau has not made a substantial showing that his claims are debatable among reasonable jurists, that another

court could resolve the issues raised in his claims differently, or that a question raised by his claims deserves additional proceedings. Thus, a certificate of appealability is not issued. Thus, it is ORDERED: 1. That a certificate of appealability is denied. DATED April 13, 2022.

BY THE COURT:

/s/ Karen E. Schreier KAREN E. SCHREIER UNITED STATES DISTRICT JUDGE