Opinion
Case No.: 4:02cr3-MW/CAS Case No.: 4:16cv304-MW/CAS
11-27-2017
UNITED STATES OF AMERICA, v. DAVID JUNIOR UPSHAW, Defendant.
ORDER ACCEPTING AND ADOPTING REPORT AND RECOMMENDATION ON THE MERITS BUT REJECTING RECOMMENTDATION THAT CERTIFICATE OF APPEALABILITY BE DENIED
The Court has considered the Magistrate's Report and Recommendation, ECF No. 76, filed October 25, 2017. The Court has also reviewed de novo Defendant's objections to the Report and Recommendation, ECF No. 81, filed November 22, 2017. Upon consideration,
IT IS ORDERED:
The report and recommendation is accepted and adopted in part as the Court's opinion, except for the Magistrate's recommendation to deny a certificate of appealability. The Clerk shall enter judgment stating, "Petitioner's Amended Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody, ECF No. 73, is DENIED. While this Court is bound by Beeman, reasonable jurists could disagree on whether the law of the circuit is correct. Similarly, reasonable jurists may disagree on whether Griffin was correctly decided and whether Beckles extends to the pre-Booker Guidelines. A certificate of appealablity is GRANTED on these issues: 1) whether Petitioner must affirmatively show that the sentencing court relied on the ACCA residual clause; and 2) whether Johnson applies to the career offender provision of the pre-Booker Guidelines."
SO ORDERED on November 27, 2017.
s/ Mark E. Walker
United States District Judge