Mikell Jr. v. Warden Allenwood Federal Correctional Institution

Filing 18

ORDER dismissing 15 Motion for Reconsideration. Mikell's implied motion for COA(docket #16) is denied as well as his in forma pauperis status on appeal. Signed by Judge B. Avant Edenfield on 7/25/2011. (loh)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
STATESBORO DIVISION
BOB AARON MIKELL, JR.,
Petitioner,
v.

reconsider challenges the Court’s ruling that
he is no longer “in custody” for the
convictions he challenged. See Doc. 15 at 2.
This same issue is before the Eleventh
Circuit via Mikell’s notice of appeal.
Mikell’s motion for reconsideration, see
Doc. 15, is DISMISSED.

6:11-cv-20

SAMUEL S. OLENS, et al,
Defendants.
ORDER
The Court dismissed Petitioner Bob
Aaron Mikell’s (“Mikell”) petition for
habeas corpus on June 13, 2011 because he
was no longer “in custody” for the
challenged convictions. See Docs. 10, 13,
14; see also Birotte v. Sec’y for Dep ’t of
Corrs., 236 F. App’x 577, 578 (11th Cir.
2007). Mikell moved the Court to
reconsider, see Doc. 15, but before the Court
ruled, Mikell filed a notice of appeal, see
Doc. 16. The Court construes Dickerson’s
notice of appeal as a request for a Certificate
of Appealability (“COA”). See Edwards v.
United States, 114 F.3d 1083, 1084 (11th
Cir. 1997).
A. MOTION TO RECONSIDER
Mikell’s appeal divests this Court of
jurisdiction to decide his motion for
reconsideration. See United States v. Reed,
404 F. App’x 464, 465 (11th Cir. 2010).
“The filing of a notice of appeal is an event
of jurisdictional significance—it confers
jurisdiction on the court of appeals and
divests the district court of its control over
those aspects of the case involved in the
appeal.”
See id. Mikell’s motion to

B. CERTIFICATE OF
APPEALABILITY
“Before an appeal may be entertained, a
prisoner who was denied habeas relief in the
district court must first seek and obtain a
COA . . .” Miller-El v. Cockrell, 537 U.S.
322, 335-36 (2003); see 28 U.S.C.
§ 2253(c). 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.
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.” Id.
(internal quotations omitted).
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.

Slack v. McDaniel, 529 U.S. 473, 484
(2000) (emphasis added).
Jurists of reason would not debate that
Mikell is not “in custody” with respect to the
convictions he challenges, and therefore,
habeas relief under 28 U.S.C. § 2254 is
unavailable to him.
Mikell’s implied motion for a COA, see
Doc. 16, is DENIED.
C. IN FORMA PA UPERIS

“An appeal may not be taken in forma
pauperis [(“IFP”)] if the trial court certifies
in writing that it is not taken in good faith.”
28 U.S.C. § 1915(a)(3). Good faith means
that an issue exists on appeal that is not
frivolous when judged under an objective
standard. See Coppedge v. United States,
369 U.S. 438, 445 (1962); Busch v. Cnty. of
Volusia, 189 F.R.D. 687, 691 (M.D. Fla.
1999). A claim is frivolous if it is “without
arguable merit either in law or fact.” Bilal v.
Driver, 251 F.3d 1346, 1349 (11th Cir.
2001).
Mikell’s claims are frivolous and his
appeal is not taken in good faith. His
motion is DENIED. The Court assesses the
full docket and filing fees of $455.

This 25th day of July 2011.

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R AVANT FT)ENFIELØ, JUDGE
UNiTED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA

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