Opinion
Case No. 3:07-cr-092 Also Case No. 3:13-cv-185
2013-10-17
UNITED STATES OF AMERICA, Plaintiff, v. RONALD HAMPTON, JR., Defendant.
District Judge Thomas M. Rose
Magistrate Judge Michael R. Merz
ORDER GRANTING CERTIFICATE OF APPEALABILITY
This case is before the Court on Defendant's Motion for a certificate of appealability (Doc. No. 184).
On August 13, 2013, the Court adopted in part and rejected in part the Magistrate Judge's Report and Recommendations regarding disposition of this matter (Doc. Nos. 179, 180). Hampton has appealed from that Order (Notice of Appeal, Doc. No. 182).
As provided in 28 U.S.C. § 2253, a petitioner seeking to appeal an adverse ruling in the district court on a petition for writ of habeas corpus or on a § 2255 motion to vacate must obtain a certificate of appealability before proceeding. The statute contemplates issuance by a circuit judge, but Rule 11(a) of the Rules Governing § 2254 cases and of the parallel Rules Governing § 2255 cases provides:
The district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant. Before entering the final order, the court may direct the parties to submit arguments on whether a certificate should issue. If the court issuesThe Rule codifies prior practice in the Sixth Circuit. Lyons v. Ohio Adult Parole Authority, 105 F.3d 1063, 1073 (6th Cir. 1997) overruled in part on other grounds by Lindh v. Murphy, 521 U.S. 320 (1997); Kincade v. Sparkman, 117 F.3d 949, 953 (6th Cir. 1997)(adopting analysis in Lozada v. United States, 107 F.3d 1011, 1017 (2nd Cir. 1997).
a certificate, the court must state the specific issue or issues that satisfy the showing required by 28 U.S.C. § 2253(c)(2). If the court denies a certificate, the parties may not appeal the denial but may seek a certificate from the court of appeals under Federal Rule of Appellate Procedure 22. A motion to reconsider a denial does not extend the time to appeal.
To obtain a certificate of appealability, a petitioner must show at least that "jurists of reason would find it debatable whether the petition states a valid claim of denial of a constitutional right." Slack v. McDaniel, 529 U.S. 473, 484 (2000). That is, it must find that reasonable jurists would find the district court's assessment of the petitioner's constitutional claims debatable or wrong or because they warrant encouragement to proceed further. Banks v. Dretke, 540 U.S. 668, 705 (2004); Miller-El v. Cockrell, 537 U.S. 322, 336 (2003).
The Magistrate Judge recommended that the sentence in this case be vacated and that Hampton be resentenced under the Fair Sentencing Act (Report, Doc. No. 179, PageID 476). The Magistrate Judge also recommended that Hampton's motion for alternative relief under 18 U.S.C. § 3582 and his pro se motion under 28 U.S.C. § 2255 be denied as moot. The Court declined to adopt that portion of the Report recommending resentencing under the Fair Sentencing Act because the Court found that the previously imposed sentence was appropriate "based upon the factors of sentencing under 18 USC 3553 (a) (1) thru (7), including but not limited to the Sentencing Guidelines in accordance with the 2010 Guideline Manual Supplement. . ." (Entry and Order, Doc. No. 180, PageID 479.)
Based on Hampton's Motion for Certificate of Appealability, the Court finds that reasonable jurists could differ on whether Hampton is entitled to resentencing under the Fair Sentencing Act and CERTIFIES the appealability of that issue.
______________________
Thomas M. Rose
United States District Judge