Gaddy v. United States of America

Filing 20

ORDER denying 12 and 15 Motions for Certificate of Appealability; denying 16 Motion for Leave to Appeal in forma pauperis; denying 17 Motion for Reconsideration. Signed by Chief Judge Lisa G. Wood on 8/31/2015. (ca)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
JAMES GADDY,
Movant,
Case No. CV415-016
CR488-032

V.

UNITED STATES OF AMERICA,
Respondent.

ORDER
Plaintiff James Gaddy moves for (1) leave to appeal in forma

pauperis ("IFP") (doe. 10' (2) a certificate of appealability ("COA")
(does. 12 & 15); and (3) reconsideration of the Court's Order adopting
the Magistrate Judge's report and recommendation (R&R) (doe. 17). All
four motions fail.
A litigant cannot proceed in forma pauperis on appeal if the trial
court certifies that the appeal is not taken in good faith. See 28 U.S.C.
§ 1915(a)(3); Fed. R. App. P. 24(a)(3)(A). Not taken in good faith means
frivolous, see Coppedge v. United States, 369 U.S. 438, 445 (1962),
which in turn means "without arguable merit either in law or fact."
1

All citations are to the docket in CV415-016 and page numbers are those
imprinted by the Court's docketing software.

Napier v. Preslicka, 314 F.3d 528, 531 (11th Cir. 2002); see also Brown
v. United States, 2009 WL 307872 at * 1-2 (S.D. Ga. Feb. 9, 2009).
Moreover, prisoner litigants denied habeas relief can't appeal, IFP
or otherwise, unless they:
first seek and obtain a COA . . ." Miller—El v. Cockrell, 537 U.S.
322, 335-36, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003); see 28 U.S.C.
§ 2253(c). A low but non-trivial standard governs the Court's
decision whether to issue a COA. Specifically, the Court will issue
a COA "where a petitioner has made a substantial showing of the
denial of a constitutional right." Miller—El, 537 U.S. at 336, 123
S.Ct. 1029 (internal quotations omitted); see 28 U.S.C. §
2253(c)(2). Petitioner "must show 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." Miller—El, 537 U.S. at 336, 123 S.Ct. 1029 (internal
quotations omitted).

Bradley v. United States, 7 F. Supp. 3d 1272, 1273 (S.D. Ga. 2014).
When the district court denies a habeas petition on procedural
grounds without reaching the prisoner's underlying constitutional
claim, a COA should issue when the prisoner shows, 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.

Evans v. United States, 2013 WL 1911480 at * 1 (S.D. Ga. May 8, 2013)
(quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000) (emphasis added).

2

The Court denied Gaddy's 28 U.S.C. § 2255 motion 2 as untimely
(does. 2 & 9) because he filed it almost twenty-five years after his
conviction and sentence became final, see United States v. Gaddy, 894
F.2d 1307, 1310 (11th Cir. 1989), and almost eighteen years after the
statute of limitations expired. 3 To justify that lengthy delay, Gaddy
claims that, despite exercising due diligence, he only learned of
appellate counsel's failure to challenge his life sentence in October 2014
when the Eleventh Circuit sent him a copy of the brief counsel filed on
his behalf in 1989. See doc. 1 at 10 (citing 28 U.S.C. § 2255(f)(4) (one
year limitation period runs from "the date on which the facts supporting
the claim or claims presented could have been discovered through the
exercise of due diligence"). That's a tepid, and legally insufficient,
justification.

2

Gaddy raised claims of ineffective assistance of appellate counsel. He claimed
that his attorney failed to appeal the imposition of a life sentence, never
"communicate[d], consult[edl or gEalve [him] a chance for input into the appellate
brief," and in fact never spoke with Gaddy again after the Court imposed its
sentence on March 10, 1989. See doc. 1 at 6-7.
As noted in the R&R, "Gaddy, a pre-AEDPA convict, had until April 24, 1997
one year after AEDPA's effective date -- to file for § 2255 relief or otherwise toll the
limitation period. Cole v. Warden, Ga. State Prison, 768 F.3d 1150, 1154 (11th Cir.
2014)." Doe. 2 at 2.
3

Gaddy received a copy of the appellate opinion -- which never
discussed Gaddy's life sentence other than to affirm it -- in April 1990,
just two months after it issued. Doe. 1 at 8. Given counsel's alleged
lack of communication and failure to consult Gaddy about the appeal,
doe. 1 at 7, circumstances Gaddy was well aware of at the time he
received the opinion, the appellate decision should have raised red flags
that led him to investigate and pursue post-conviction relief. He had
ten months after reading the opinion to do that. But he didn't. Instead,
he inexplicably waited until March 2014 to take any action at all
regarding his sentencing claims, Id. at 9, and until January 22, 2015 to
file his § 2255 motion. 4 Doe. 1.
Faced with no explanation for Gaddy's eighteen-year delay in
filing the present motion, no jurist of reason would find it debatable
whether the Court correctly concluded that his motion was untimely.

Slack, 529 U.S. at 484; see also Stone v. Medlin, 2013 WL 607692 at * 2
(S.D. Ga. Feb. 19, 2013) (no debatability in denial of § 2254 petition as

In one of his motions for a certificate of appealability, Gaddy appears to claim
that he knew of his attorney's alleged errors as early as 2012, since it was then that
he "submitted a motion in his criminal case . . . to correct his illegal sentence." Doe.
15 at 2. Even measuring the limitations period from that date instead of when his
conviction became final, his motion, filed January 22, 2015 (doe. 1), came at least
two years too late.
4

untimely where sixteen-day delay in filing stood unexplained) Marshall
v. Holt, 2014 WL 2711942

at * 6 (N.D. Ga. June 13, 2014) (no

reasonable jurist would disagree that five-year delay in filing habeas
petition rendered petition untimely, where prisoner's only explanation
for delay was blindness). Furthermore, he makes no argument with
legal or factual merit that undermines that conclusion.
The Court, therefore, certifies that any appeal would not be taken
in good faith and so DENIES leave to appeal IFP. Doe. 16. Since no
jurist of reason could debate the Court's denial of Gaddy's §

2255

motion as untimely, it also DENIES Gaddy's request for a COA (does.
12 & 15), and his motion for reconsideration. 5 Doe. 17.
SO ORDERED this

$7 day of i4

15 .
1 WOOD, CHIEF JUDGE
ATES DISTRICT COURT
DISTRICT OF GEORGIA

5

"Reconsideration may be necessary if there is (1) newly discovered evidence, (2)
an intervening development or change in controlling law, or (3) the need to correct a
clear error or prevent manifest injustice. Jersawitz v. People TV, 71 F.Supp.2d
1330, 1344 (N.D.Ga.1999)." Spencer v. St. Joseph's/Candler Health Sys., Inc., 2007
WL 1615117 at * 2 (S.D. Ga. June 4, 2007). None of those circumstances exist here.