Opinion
CASES NO. 4:08cr32-RH/CAS 4:10cv369-RH/CAS
08-22-2013
UNITED STATES OF AMERICA, v. TIMOTHY L. KELLEY, Defendant.
ORDER DENYING THE § 2255 MOTION
The defendant has moved under 28 U.S.C. § 2255 for relief from his judgment of conviction. The motion is before the court on the magistrate judge's report and recommendation, ECF No. 38. No objections have been filed.
The defendant's only claim is that his attorney rendered ineffective assistance by failing to consult with the defendant about an appeal. The defendant says he would have appealed. The report and recommendation correctly concludes that the defendant's motion is barred by the one-year statute of limitations and that the defendant's arguments for tolling fall short.
Applying the statute of limitations sometimes seems harsh. Not so in this case. The defendant pleaded guilty and was sentenced to the minimum mandatory term, undoubtedly hoping to obtain a later sentence reduction, as has occurred. This was probably the best result the defendant could have hoped for. In any event, the defendant has suggested no ground whatsoever for an appeal or for challenging his conviction and sentence. Had the attorney been told to file an appeal but not done so, the lack of meritorious grounds for an appeal would not matter; an attorney who is directed to file an appeal must do so, even when the attorney believes an appeal will be unfounded. And an attorney should consult about an appeal in any event; an attorney renders ineffective assistance by improperly failing to do consult, and again, the remedy is an appeal, even if the appeal will be unfounded. But when a § 2255 motion is barred by the statute of limitations, and there are absolutely no grounds for challenging the conviction or sentence, applying the statute of limitations is not harsh.
A defendant may appeal the denial of a § 2255 motion only if the district court or court of appeals issues a certificate of appealability. Under 28 U.S.C. § 2253(c)(2), a certificate of appealability may issue "only if the applicant has made a substantial showing of the denial of a constitutional right." Miller-El v. Cockrell, 537 U.S. 322, 335-38 (2003); Slack v. McDaniel, 529 U.S. 473, 483-84 (2000); Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983); see also Williams v. Taylor, 529 U.S. 362, 402-13, 120 S. Ct. 1495, 146 L. Ed. 2d 389 (2000) (setting out the standards applicable to a § 2254 petition on the merits). As the Court said in Slack:
To obtain a COA under § 2253(c), a habeas prisoner must make a substantial showing of the denial of a constitutional right, a demonstration that, under Barefoot, includes showing 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."Slack, 529 U.S. at 483-84 (quoting Barefoot, 463 U.S. at 893 n.4). Further, in order to obtain a certificate of appealability when dismissal is based on procedural grounds, a petitioner must show, "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, 529 U.S. at 484.
The defendant has not made the required showing. This order thus denies a certificate of appealability. Because the defendant has not obtained—and is not entitled to—a certificate of appealability, any appeal by the defendant will not be taken in good faith. I certify under Federal Rule of Appellate Procedure 24(a) that any appeal will not be taken in good faith and that the defendant is not otherwise entitled to proceed in forma pauperis on appeal. Accordingly,
IT IS ORDERED:
1. The clerk must enter a judgment stating, "The defendant's motion for relief under 28 U.S.C. § 2255 is DENIED.
2. A certificate of appealability is DENIED.
3. Leave to proceed on appeal in forma pauperis is DENIED.
Robert L. Hinkle
United States District Judge