Opinion
Case No. 2:05-cv-449, Crim. No. 2:02-cr-035(1).
March 1, 2006
OPINION AND ORDER
On July 26, 2005, final judgment was entered dismissing the instant motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255. Doc. No. 82. On November 8, 2005, petitioner's request for an extension of time to file the notice of appeal was granted, as the docket confirmed that petitioner did not receive notice of final judgment dismissing this action until after the time period for filing an appeal had already expired. See Doc. No. 90. This matter is before the Court on petitioner's November 21, 2005, notice of appeal, which this Court construes as a request for a certificate of appealability. Doc. No. 91. For the reasons that follow, petitioner's request for a certificate of appealability is DENIED; petitioner's request to proceed in forma pauperis on appeal likewise is DENIED.
Petitioner's notice of appeal is time-stamped as filed on November 21, 2005; however, the notice was not docketed until November 28, 2005. See Doc. No. 91. Petitioner states that he deposited his notice of appeal in the prison's mail on November 15, 2005. See id.; Doc. No. 92.
In his federal habeas corpus petition, petitioner asserts the following claims:
1. Whether petitioner's Sixth Amendment right to confrontation was violated when the United States willfully caused Perry Jemison to be unavailable for trial and Agent Carroll testified to statements made against petitioner?
2. Was trial counsel ineffective when his cross-examination of Agent Carroll violated petitioner's Sixth Amendment right to confrontation by eliciting damaging evidence against petitioner?
3. Ineffective assistance of trial counsel due to counsel's failure to conduct discovery or hire an investigator to interview Jemison prior to trial.
4. Whether Section 4B1.1 of the United States Sentencing Guidelines unconstitutional when [sic] petitioner's sentence [was] enhanced based on uncharged facts that were neither found by a jury beyond a reasonable doubt nor admitted by petitioner?
5. Whether the calculation of petitioner's criminal history category unconstitutional when [sic] petitioner's sentence [was] increased based on uncharged fats that were neither found by a jury beyond a reasonable doubt nor admitted by the petitioner?
6. Whether the application that governs In re Winship decision applied in Blakely and Booker inapplicable [sic] under Teague's non-retroactivity rule?
On June 14, 2005, claims 4, 5, and 6 were dismissed pursuant to Rule 4 of the Rules Governing Section 2255 Proceedings, as such claims had already been considered and rejected on direct appeal, and because neither Blakely v. Washington, 124 S.Ct. 2531 (2004), nor United States v. Booker, 125 S.Ct. 738 (2005), are retroactively applicable to cases on collateral review. Humphress v. United States, 398 F.3d 855, 860 (6th Cir. 2005); see Doc. No. 68. On July 26, 2005, the remainder of petitioner's claims were dismissed on the merits. Doc. No. 82.
Where the Court dismisses a claim on procedural grounds, a certificate of appealability
should issue when the prisoner shows, at least, 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, 120 S.Ct. 1595 (2000). Thus, there are two components to determining whether a certificate of appealability should issue when a claim is dismissed on procedural grounds: "one directed at the underlying constitutional claims and one directed at the district court's procedural holding." The court may first "resolve the issue whose answer is more apparent from the record and arguments." Id.
When a claim has been denied on the merits, a certificate of appealability may issue only if the petitioner "has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). This standard is a codification of Barefoot v. Estelle, 463 U.S. 880 (1983). Slack v. McDaniel, supra. To make a substantial showing of the denial of a constitutional right, a petitioner must show
that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were "`adequate to deserve encouragement to proceed further.'" Barefoot, 463 U.S., at 893, and n. 4. . . .Id.
Upon review of the record, the Court concludes that petitioner has failed to establish either that reasonable jurists could debate whether the Court was correct in its procedural rulings, or that any of his claims should have been resolved differently. Id.
Petitioner's request for a certificate of appealability therefore is DENIED.
Pursuant to 28 U.S.C. § 1915(a)(3), an appeal may not be taken in forma pauperis if the appeal is not taken in good faith. See also Federal Rule of Appellate Procedure 24(a)(3)(A):
A party who was permitted to proceed in forma pauperis in the district-court action, or who was determined to be financially unable to obtain an adequate defense in a criminal case, may proceed on appeal in forma pauperis without further authorization, unless:
(A) the district court — before or after the notice of appeal is filed — certifies that the appeal is not taken in good faith[.]
The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that the appeal is not in good faith. Therefore, petitioner's request to proceed in forma pauperis on appeal, Doc. No. 96, is also DENIED.
IT IS SO ORDERED.