United States District Court, D. Rhode Island
WILLIAM E. SMITH, Chief Judge.
matter is before the Court on two motions filed by Defendant
Arjusz Roszkowski. In the first, Roszkowski requests the
issuance of a Certificate of Appealability
(“COA”)(ECF No. 130) with respect to the
Court's denial of his motion to reconsider the denial of
his § 2255 motion and his Motion for New Trial. The
second seeks the appointment of a new attorney on appeal (ECF
No. 131). For the following reasons, both motions are DENIED.
16, 2014, Roszkowski filed a Motion under 28 U.S.C. §
2255 to Vacate, Set Aside, or Correct Sentence by a Person in
Federal Custody (ECF No. 105). The Court denied and dismissed
the Motion to Vacate in an Order dated September 18, 2015
(ECF No. 117).
January 11, 2016, Roszkowski filed a Motion for
Reconsideration (ECF No. 119) of the denial of the Motion to
Vacate. He subsequently filed a Motion for a New Trial Based
on a New Supreme Court Ruling. (ECF No. 121.) The Court
denied both motions by Order dated May 6, 2016 (ECF No. 124),
and on May 16, 2016, Roszkowski filed a Notice of Appeal (ECF
No. 125) of that Order.
Request for COA
14, 2016, the Court of Appeals for the First Circuit directed
Roszkowski to apply for a COA in this Court, as it did not
appear that he had done so. Roszkowski v. United
States, No. 16-1633 (1st Cir. July 14, 2016) (Order of
Court directing Petitioner to seek COA in district court).
The Order of Court states, in relevant part:
This court has docketed petitioner-appellant's appeal
from the denial of his motion to vacate sentence under 28
U.S.C. § 2255. The case cannot go forward unless a
certificate of appealability issues. 28 U.S.C. § 2253. A
request for a certificate of appealability must first be
sought in the district court.
district court dismisses a habeas petition solely on
procedural grounds, a COA will not issue unless the
petitioner can demonstrate both “that jurists of reason
would find it debatable whether the petition states a valid
claim of the denial of a constitutional right and that
jurists of reason would find it debatable whether the
district court was correct in its procedural ruling.”
Slack v. McDaniel, 529 U.S. 473, 484 (2000).
has not demonstrated that “jurists of reason would find
it debatable whether the petition states a valid claim of the
denial of a constitutional right . . . .” Id.
Indeed, both the Motion to Vacate and the Motion for
Reconsideration allege errors in the application of the
United States Sentencing Guidelines, not the denial of a
constitutional right. (ECF No. 105-11-3; ECF No. 119 2.)
Roszkowski does not attempt to argue otherwise in his request
for a COA. (ECF No. 130 1.)
[w]here a plain procedural bar is present and the district
court is correct to invoke it to dispose of the case, a
reasonable jurist could not conclude either that the district
court erred in dismissing the petition or that the petitioner
should be allowed to ...