Willis v. United States Of America

Filing 25

ORDER dismissing as moot Willis' 18 Motion for Reconsideration re 16 Order Adopting Report and Recommendations; denying Willis' 22 Motion for Leave to Appeal in forma pauperis. Additionally, the Court DENIES Willis a Certificate of Appealability. Signed by Chief Judge Lisa G. Wood on 2/24/2017. (ca)

tlie Mniteti States! liisitrtct Court

:lfor tl^e ^outl[ieru Bisitrtct of (tleorsia
Prunsittitck litfitsiion
LOYD ANTHONY WILLIS,
Petitioner,

CIVIL ACTION NO.: 2:15-cv-93

V.

(Case No.: 2:10-cr-61)

LfNITED STATES OF AMERICA,

Respondent.

ORDER

Presently before the Court are Loyd Willis' (^'Willis")
Motion for Reconsideration and Motion for Leave to Appeal in

Forma Pauperis.

Dkt. Nos. 18, 22.

For the reasons which

follow, the Court DISMISSES as moot Willis' Motion for
Reconsideration and DENIES Willis' Motion for Leave to Appeal in

Forma Pauperis,

Additionally, the Court DENIES Willis a

Certificate of Appealability.
BACKGROUND

Willis was convicted in this Court, after entry of a guilty

plea, of: unlicensed dealing in firearms, in violation of 18
U.S.C. § 922(a)(1); possession of a firearm by a convicted
felon, in violation of 18 U.S.C. § 922(g)(1); and distribution
of controlled substances within 1,000 feet of a school zone, in

A0 72A

(Rev. 8/82)

violation of 21 U.S.C. §§ 841(1)(1) and 860.

J., United States

V. Willis, 2:10-cr-61 (S.D. Ga. Nov. 29, 2011), ECF No. 130.
The Court sentenced Willis to 188 months' imprisonment, which

was comprised of concurrent terms of 60 months on the unlicensed
dealing count, 120 months on the felon-in-possession count, and
188 months on the distribution count.

Id.

Willis did not file

a direct appeal.
Willis filed a Motion to Vacate, Set Aside, or Correct his

Sentence pursuant to 28 U.S.C. § 2255 on July 20, 2015,
following the United States Attorney's disclosure of the

existence of an improper relationship between the Assistant
United States Attorney and case agent who prosecuted Willis'
criminal case.

Dkt. No. 1.

Willis asserted this improper

relationship undermined the confidence in the outcome of the
criminal proceedings against him.

Willis alleged he did not

enter into his plea knowingly and intelligently and that his
counsel was grossly negligent for not challenging his sentence.

Dkt. No. 12, pp. 2-3 (citing Dkt. No. 1, pp. 3, 6).

United

States Magistrate Judge James E. Graham issued a Report
recommending that Willis' Section 2255 Motion be denied, because

Willis' Motion was untimely and he failed to establish his
attorney rendered ineffective assistance causing Willis' plea to

have been entered into involuntarily and unintelligently.
at pp. 3-11.

Id.

Willis also filed a Motion for Relief Pursuant to Federal

Rule of Civil Procedure 60(b)(3).

Dkt. No. 2.

In the same

Report, the Magistrate Judge recommended the denial of Willis'
Rule 60(b)(3) Motion because this Rule does not provide for

relief from a judgment in a criminal case.

Dkt. No, 12, pp. 11-

12.

Willis filed Objections to the Report and Recommendation.
Dkt. No. 14.

The Court overruled Willis' Objections and adopted

the Report and Recommendation as the opinion of the Court on
March 25, 2016.

Dkt. No. 16.

The Court entered judgment on

March 29, 2016.

Dkt. No. 17.

On June 13, 2016, Willis filed

his Motion for Reconsideration.

Dkt. No. 18.

Willis filed a

Motion for Leave to Appeal in Forma Pauperis on July 18, 2016.
Dkt. No. 22.
DISCUSSION

I.

Motion for Reconsideration

Willis entitled this Motion as ^'Motion for Re-consideration
Based on Evidence not Considered" and as a "Motion to

Modify/Reduce Sentence Under 18 U.S.C. § [3]582(c)(2)", and it
was docketed in this case as a Motion for Reconsideration of the

Court's March 25, 2016, Order.

However, this Motion also was

correctly filed in Willis' criminal case as a motion to reduce

sentence.^

Mot., United States v. Willis, 2:10-cr-61 (S.D. Ga.

June 13, 2016), ECF No. 167.

The Court denied Willis' motion to

reduce sentence and found Willis """is not eligible for a sentence

reduction pursuant to Amendment 782[ ]" of the United States
Sentencing Guidelines.

Order, United States v. Willis, (S.D.

Ga. July 7, 2016), ECF No. 170.

Because the Court has already

issued a ruling on Willis' ''Motion for Reconsideration" after

this pleading was filed as a motion to reduce his sentence in
his criminal case, the Court DISMISSES as moob Willis' Motion
filed in his Section 2255 proceedings.

II.

Motion for Leave to Appeal in Forma. Pauperls and
Certificate of Appealability

An appeal cannot be taken in forma pauperis if the trial
court certifies that the appeal is not taken in good faith.
U.S.C. § 1915(a)(3); Fed. R. App. P. 24(a)(3).

28

Good faith in

this context must be judged by an objective standard.
Cty. of Volusia, 189 F.R.D. 687, 691 (M.D. Fla. 1999).

Busch v.
A party

does not proceed in good faith when he seeks to advance a
frivolous claim or argument.
U.S. 438, 445 (1962).

See Coppedqe v. United States, 369

A claim or argument is frivolous when it

appears the factual allegations are clearly baseless or the
^

Willis' Motion was also filed in his criminal case as a motion for

reconsideration of the Court's March 25, 2016, Order denying relief

pursuant to Section 2255.

However, these motions are identical.

Mot., United States v. Willis, 2:10-cr-61 (S.D. Ga. June 13, 2016),
ECF No. 165.
4

legal theories are indisputably meritless.

Neitzke v. Williams,

490 U.S. 319, 327 (1989); Carroll v. Gross, 984 F.2d 392, 393

(11th Cir. 1993).

Or, stated another way, an in forma pauperis

action is frivolous and, thus, not brought in good faith, if it

is ^'without arguable merit either in law or fact."

Napier v.

Preslicka, 314 F.3d 528, 531 (11th Cir. 2002); see also Brown v.

United States, Nos. 407CV085, 403CR001, 2009 WL 307872, at *1-2
(S.D. Ga. Feb. 9, 2009).

Additionally, under 28 U.S.C. § 2253(c)(1), an appeal
cannot be taken from a final order in a habeas proceeding unless

a certificate of appealability is issued.

While Willis did not

move for the issuance of a Certificate of Appealability,

pursuant to Rule 11 of the Rules Governing Section 2255 Cases,
^^the district court must issue or deny a certificate of

appealability when it issues a final order adverse to the
applicant."

(Emphasis supplied); see also Fed. R. App. P.

24(a)(3) (trial court may certify that appeal of party

proceeding in forma pauperis is not taken in good faith ^^before
or after the notice of appeal is filed").

A certificate of

appealability may issue only if the applicant makes a
substantial showing of a denial of a constitutional right.

The

decision to issue a certificate of appealability requires ^^an

overview of the claims in the habeas petition and a general
assessment of their merits."

Miller-El v. Cockrell, 537 U.S.

322, 336 (2003).

In order to obtain a certificate of

appealability, a petitioner must show '"that jurists of reason
could disagree with the district court's resolution of his
constitutional claims or that jurists could conclude the issues
presented are adequate to deserve encouragement to proceed

further."

Id.

^'Where a plain procedural bar is present and the

district court is correct to invoke it to dispose of the case, a
reasonable jurist could not conclude either that the district
court erred in dismissing the petition or that the petitioner
should be allowed to proceed further."

Slack v. McDaniel, 529

U.S. 473, 484 (2000); see also Franklin v. Hightower, 215 F.3d

1196, 1199 (11th Cir. 2000).

'^This threshold inquiry does not

require full consideration of the factual or legal bases adduced

in support of the claims."

Miller-El, 537 U.S. at 336.

Based on the analysis of Willis' pleadings and applying the
Certificate of Appealability standards set forth above, there
are no discernable issues worthy of a certificate of appeal;
therefore, the Court DENIES the issuance of a Certificate of

Appealability.

Willis is advised that he ^'may not appeal th[is]

denial but may seek a certificate from the court of appeals
under Federal Rule of Appellate Procedure 22."

Rule 11(a),

Rules Governing Section 2255 Cases in the United States District
Courts.

Furthermore, as there are no non-frivolous issues to

raise on appeal, an appeal would not be taken in good faith.

Thus, the Court likewise DENIES Willis' Motion for Leave to

Appeal in forma pauperis.
CONCLUSION

For the above-stated reasons, the Court DISMISSES as moot
Willis' Motion for Reconsideration and DENIES Willis' Motion for

Leave to Appeal in Forma Pauperis.

Additionally, the Court

DENIES Willis a Certificate of Appealability.

SO ORDERED, this

day of

LISA

, 2017.

CIIIEF-^DGE

UNITra STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA