Brown v. U.S.

187 F.Supp.2d 887

Otis J. BROWN, Petitioner, v. UNITED STATES of America, Respondent.

No. CIV. 01-40092.

No. CR. 97-50021.

United States District Court, E.D. Michigan, Southern Division.

February 25, 2002.

OPINION AND ORDER GRANTING CERTIFICATE OF APPEALABILITY AND GRANTING APPLICATION TO WAIVE PREPAYMENT OF APPEAL FILING FEE

GADOLA, District Judge.

Before the Court are Petitioner's "motion for certificate of appealability" [docket entry 429] and "application to proceed in forma pauperis" [docket entry 422]. Pursuant to Local Rule 7.1(e), the Court concludes that a hearing would not aid substantially in the disposition of these matters. For the reasons set forth below, the Court shall grant Petitioner's motion for a certificate of appealability and grant waiver of prepayment of the appeal filing fee.

I BACKGROUND

On November 9, 1998, Petitioner pled guilty to several counts of the second superseding indictment in this case. Count I included violations of 21 U.S.C. §§ 846 and 841(a)(1) (conspiracy to distribute cocaine). Count VII included violations of 21 U.S.C. § 841(a)(1) (distribution of cocaine) and 18 U.S.C. § 2 (aiding and abetting). Count XVI included violations of 21 U.S.C. § 841(a)(1) (possession with intent to distribute cocaine) and 18 U.S.C. § 2 (aiding and abetting). Count XVII included a violation of 18 U.S.C. § 922(g) (felon in possession of a firearm).

On March 18, 1999, the Court sentenced Petitioner pursuant to 21 U.S.C. §§ 841(b)(1)(A) and (C) and 18 U.S.C. § 924(a)(2). (Pre-Sentence Investigation Report at ¶¶ 56-74.) The Court determined that Petitioner's guideline range was 135 to 168 months, as the parties agreed in the plea agreement. The Court nonetheless granted a request for a downward departure for substantial assistance under United States Sentencing Guideline (U.S.S.G.) § 5K1 .1 and 18 U.S.C. § 3553(e) and sentenced Petitioner to 90 months' incarceration for all counts and a five-year supervised release term for count I, as well as concurrent three-year terms on counts VII, XVI, and XVII.

Petitioner appealed this sentence, arguing that "he was entitled to an evidentiary hearing on whether the district court relied upon his diary when ruling on his motion for a downward departure based on `aberrant' behavior" and that the Court improperly applied the sentencing guideline range to him. United States v. Thornton, No. 99-1275, 2000 WL 1597928, at **2-3 (6th Cir. Oct.17, 2000). The Sixth Circuit rejected both arguments. Id.

Petitioner next moved to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. Petitioner offered four grounds for his motion. First was that the indictment for violating § 922(g) was defective because count XVII failed to allege that Petitioner used or carried a firearm. Second was that the Court improperly enhanced his sentence for possession of a firearm pursuant to U.S.S.G. § 2D1.1(b)(1). Third was that the Court improperly failed to reduce his sentence pursuant to U.S.S.G. § 3B1.2 for minimal or minor participation in the offenses. Finally, Petitioner argued that his sentence was infirm in light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). On July 20, 2001, the Court denied Petitioner's § 2255 motion, rejecting each of these arguments.

On September 6, 2001, the Court denied Petitioner's motion for reconsideration. On September 13, 2001, Petitioner filed a notice of appeal. On October 25, 2001, Petitioner applied to proceed in forma pauperis ("IFP"). In a letter dated October 25, 2001, the Sixth Circuit informed Petitioner that he must obtain a ruling as to a certificate of appealability ("COA") from this Court before he could proceed further with his appeal. Petitioner, however, failed to move for a COA. The Sixth Circuit therefore reiterated its point in letters of November 26, 2001 and January 18, 2002. Petitioner still did nothing.

On January 25, 2002, this Court ordered Petitioner to move for a COA within twenty-one days and denied without prejudice Petitioner's application to proceed IFP on the ground that such an application would be moot unless Petitioner were first to show that he were entitled to a COA. See Desmond v. Snyder, No. 96-327-GMS, 2000 WL 1726531, at **3-4 (D.Del. Feb.16, 2000). Finally, on February 1, 2002, Petitioner filed the present motion, pro se, for a certificate of appealability. This motion contains several procedural deficiencies discussed infra.

II ANALYSIS

A. COA

The Court will discuss three issues regarding the COA: (1) when a district court should decide whether to issue a COA; (2) the effect of Petitioner's failure to comply with the Local Rules in his motion for a COA; and (3) the merits of Petitioner's motion for a COA.

1. When a district court should rule on a COA

The Court discusses this issue because it is unclear, in light of recent precedent, when a district court must decide whether to issue a COA. On May 17, 2001, the Honorable Boyce Martin, Chief Judge of the Sixth Circuit Court of Appeals, sent a letter to judges in this jurisdiction "suggest[ing] that when you dismiss a habeas corpus petition you make a concurrent determination as to any certificate of appealability." Letter from Hon. Boyce F. Martin, Jr. to District and Magistrate Judges, May 17, 2001.

In the wake of Judge Martin's letter, many judges in this jurisdiction, the undersigned included, made it their practice to decide, sua sponte, whether to issue a COA at the end of their orders denying a motion for the writ of habeas corpus. See, e.g., Grayson v. Grayson, 185 F.Supp.2d 747, 752 (E.D.Mich.2002); Friday v. Straub, 175 F.Supp.2d 933, 941 (E.D.Mich. 2001) (Gadola, J.); Allen v. Stovall, 156 F.Supp.2d 791, 798 (E.D.Mich.2001); White v. Withrow, No. 00-74231, 2001 WL 902624, at *12 (E.D.Mich. June 22, 2001).

Upon further reflection, however, the undersigned concludes that the better practice is not to decide whether to grant or deny a COA until after a petitioner moves for such relief. Three reasons support this approach.

The first is that recent precedent weighs against premature adjudication of a COA. In Murphy v. Ohio, 263 F.3d 466 (6th Cir.2001), the petitioner argued that "the district court erred in prematurely denying a COA before [he] had even applied for one." Id. at 466. The Sixth Circuit vacated the district court's order denying a COA and noted disapprovingly that "the lower court denied Murphy a COA before Murphy had even applied for one, and failed to provide any analysis whatsoever as to whether Murphy had made a substantial showing of a constitutional right." Id. (internal quotation omitted) (emphasis added). The logical inference from this language is that, although it might be permissible for a district court to deny a COA before a petitioner moves for one if the district court's analysis is sufficiently thorough, the more prudent course is to wait for the petitioner to apply for a COA and only then engage in a detailed analysis of the issues presented before deciding whether to grant the COA. The latter approach would clearly prevent a district court from running afoul of Murphy; the former might not.

The second reason to wait for a petitioner to move for a COA before adjudicating the matter is Federal Rule of Appellate Procedure 22(b)(1). Rule 22(b)(1), in relevant part, states that "[i]f 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." Fed. R.App. P. 22(b)(1) (emphasis added). Thus, the plain language of Rule 22(b)(1) shows that a petitioner must (1) move for a COA and (2) file a notice of appeal before this Court is required to decide whether a COA shall issue. The second predicate is obvious from the text of the Rule.

The first predicate—that the petitioner move for a COA before this Court is required to grant or deny one—is somewhat less obvious, but nonetheless exists. This is so because Rule 22(b)(1) applies only where the Court confronts an "applicant" for a COA. Id. An "applicant" is "a person who applies." Webster's New World Dictionary 67 (Victoria Neufeldt, ed.1988). Accordingly, a petitioner must apply for a COA before Rule 22(b)(1) requires the Court to grant or deny the certificate.

The third reason in favor of not ruling on a COA until a petitioner moves for one is that prematurely ruling on a COA would effectively deprive many petitioners of the opportunity to prove that they are entitled to a COA. Under Barefoot v. Estelle, 463 U.S. 880, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983), a petitioner seeking a COA must show that the issues in his petition are debatable among jurists of reason, that a court could resolve the issues differently, or that the questions are "adequate to deserve encouragement to proceed further." Id. at 893 n. 4, 103 S.Ct. 3383 A petitioner often will not address the Barefoot v. Estelle standard in his habeas motion. Instead, a petitioner frequently addresses that standard, and moves for a COA, only in response to the Court's denial of habeas relief.¹ Were the Court to deny the COA sua sponte at the end of an order denying habeas relief, accordingly, the Court would effectively deprive many petitioners of an opportunity to explain why, pursuant to Barefoot v. Estelle, they were entitled to a COA.

One could argue that, when the Court adjudicates a petitioner's habeas motion, the petitioner has already had one opportunity to meet the standard delineated in Barefoot v. Estelle. The text of Rule 22, however, indicates that the petitioner is entitled, under that Rule, to a second opportunity, independent of his motion for habeas relief, to prove that he is entitled to a COA. That second opportunity is important to some petitioners because, in some cases, a petitioner's ability to marshal his arguments in favor of a COA after his motion for habeas relief is denied may be critical to obtaining the...