UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA :

:

vs. : No. 4:CR-96-239

:

DAVID PAUL HAMMER : (Judge Muir)

ORDER

February 8, 2006

THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:

On December 27, 2005, we issued a 278-page opinion with

1705 specific findings of fact and order granting in part and

denying in part David Paul Hammer’s fourth amended § 2255 motion.

The order vacated and set aside the sentence of death imposed on

Mr. Hammer on November 4, 1998, and authorized the Government

within 60 days to file a motion to have the case placed on a

trial list for a new penalty-phase trial. We denied Mr. Hammer’s

request to be permitted to withdraw his guilty plea and for a new

guilt-phase trial. 28 U.S.C. § 2253 states in relevant part as

follows:

(c)(1) Unless a circuit justice or judge issues a

certificate of appealability an appeal may not be

taken to the court of appeals from --

**** * * *

(B) the final order in a proceeding under section

2255.

 (2) A certificate of appealability may issue

 under paragraph (1) only if the applicant has made a

 substantial showing of the denial of constitutional

 right.

Rule 22 of the Federal Rules of Appellate Procedure states in

relevant part as follows:

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(1) . . . in a 28 U.S.C § 2255 proceeding, the

applicant cannot take an appeal unless a circuit

justice or a circuit or district judge issues a

certificate of appealability under 28 U.S.C. §

2253(c). If an applicant files a notice of appeal,

the district judge who rendered the judgment must

either issue a certificate of appealability or

state why a certificate should not issue. The

district clerk must send the certificate or

statement to the court of appeals with the notice

of appeal and the file of the district-court

proceedings. If the district judge has denied

the certificate, the applicant may request a

circuit judge to issue the certificate. 

The United States Supreme Court has stated that “[w]here a

district court has rejected the constitutional claims on the

merits, the showing required to satisfy § 2253(c) is

straightforward: The petitioner must demonstrate that reasonable

jurists would find the district court’s assessment of the

constitutional claims debatable or wrong.” Slack v. McDaniel,

529 U.S. 473, 484 (2000).

On February 7, 2006, Mr. Hammer filed a notice of

appeal which states in full as follows: 

PLEASE TAKE NOTICE, that Defendant/Petitioner David

Paul Hammer, hereby appeals to the United States

Court of Appeals for the Third Circuit from each

and every adverse finding and ruling rendered by the

District Court in its Order and Opinion of December

27, 2005.

Mr. Hammer is required to make a substantial showing of the

denial of a constitutional right as defined by the Supreme Court

in Slack v. McDaniel before a certificate of appealability can

issue. We are of the view that Mr. Hammer has not made such a

showing by the general reference with respect to “each and every

adverse finding and ruling rendered by [us].” Under the

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circumstances and we will not issue a certificate of

appealability. 

NOW, THEREFORE, IT IS HEREBY ORDERED THAT:

For the reasons set forth in our 278-page opinion and

order of December 27, 2005, the appeal of the portion of that

opinion and order which denied in part Mr. Hammer’s fourth

amended § 2255 motion is deemed to be lacking a substantial

showing of the denial of a constitutional right and a certificate

of appealability will not be issued by us. 

 s/Malcolm Muir 

MUIR, U.S. District Judge

MM:gs

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