JEFFREY KEARNS GILBERT v. UNITED STATES OF AMERICA (2017)

ORDER

Submitted is Appellant's notice of appeal, which may be construed as a request for a certificate of appealability under 28 U.S.C. § 2253(c)(1) in the above-captioned case.

Respectfully,

Clerk

The foregoing application for a certificate of appealability is denied, as Gilbert has not made a substantial showing of the denial of a constitutional right. See 28 U.S.C. § 2253(c)(2). To the extent that any claim was decided on the merits, Gilbert has not shown that jurists of reason would debate the District Court's assessment of the merits of the claims. Miller-El v. Cockrell, 537 U.S. 322, 338 (2003) (citing Slack v. McDaniel, 529 U.S. 473, 484 (2000)). Otherwise, Gilbert has not shown that jurists of reason would debate whether the District Court was correct in its procedural rulings and whether the motion states a valid claim for the denial of a constitutional right. Slack, 529 U.S. at 484). Specifically, jurists of reason would not debate the District Court's ruling that all of Gilbert's claims other than his claims of ineffective assistance of counsel are procedurally defaulted. Gilbert had a fair opportunity to present his claims on direct appeal but failed to do so. United States v. Frady, 456 U.S. 152, 164 (1982); Hodge v. United States, 554 F.3d 372, 378 (3d Cir. 2009). Gilbert did not establish cause and prejudice or actual innocence to excuse the procedural default. United States v. Pelullo, 399 F.3d 197, 223 (3d Cir. 2005); Schlup v. Delo, 513 U.S. 298, 329 (1995). To the extent Gilbert presented a standalone claim of innocence, jurists of reason would not debate the District Court's conclusion that Gilbert failed to make the “extraordinarily high” showing required for such a claim. See Albrecht v. Horn, 485 F.3d 103, 120-26 (3d Cir. 2007). Jurists of reason would also not debate the District Court's decision to deny Gilbert's ineffective assistance of counsel claims. Some of Gilbert's ineffective assistance of counsel claims failed because they were vague, conclusory, and unsupported. And none of Gilbert's claims of ineffective assistance of counsel were otherwise meritorious. See Strickland v. Washington, 466 U.S. 668, 687-88 (1984); see also Liteky v. United States, 510 U.S. 540, 555 (1994); United States v. Wilensky, 757 F.2d 594, 597 (3d Cir. 1985). Finally, jurists of reason would agree that the District Court did not err in denying Gilbert's motion to file an out-of-time reply and motion for reconsideration. See Slack, 529 U.S. at 484; Blystone v. Horn, 664 F.3d 397, 411 (3d Cir. 2011).

By the Court,

Thomas I. Vanaskie Circuit Judge