Willis v. United States Of America
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
LOYD ANTHONY WILLIS,
CIVIL ACTION NO.: 2:15-cv-93
(Case No.: 2:10-cr-61)
LfNITED STATES OF AMERICA,
Presently before the Court are Loyd Willis' (^'Willis")
Motion for Reconsideration and Motion for Leave to Appeal in
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
Additionally, the Court DENIES Willis a
Certificate of Appealability.
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
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.
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'
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).
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.
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-
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.
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. § 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
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
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.
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).
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).
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.
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."
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
(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.
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
^'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
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."
Rules Governing Section 2255 Cases in the United States District
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.
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
UNITra STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
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