Alvin v. United States Of America

Filing 48

ORDER denying 45 Motion for Certificate of Appealability. Alvin's implied motion for IFP status on appeal(Doc. 45) is also denied. Signed by Judge B. Avant Edenfield on 6/18/2012. (loh)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
STATESBORO DIVISION
MISTRELL ALVIN,
Movant,
v.

6:11-cv-65

UNITED STATES OF AMERICA,
Respondent.
ORDER
I.

INTRODUCTION

Before the Court is Movant Mistrell
Alvin’s (“Alvin”) “Application to Expand
Certificate of Appealability and
Enlargement of Time to File an COA,”
which the Court construes as a notice of
appeal. See Doc. 44. Moreover, the Court
construes Alvin’s notice of appeal as a
request for a Certificate of Appealability
(“COA”) and for in forma pauperis (“IFP”)
status on appeal. See Doc. 45; Edwards v.
United States, 114 F.3d 1083, 1084 (11th
Cir. 1997).
II.

ANALYSIS

Alvin was convicted of conspiracy to
possess with the intent to distribute cocaine.
See United States v. Alvin, 6:06-cr-26, Doc.
720 (S.D. Ga. Jan. 23, 2008). The Eleventh
Circuit upheld Alvin’s sentence on appeal.
See United States v. Bacon, 598 F.3d 772,
777-78 (11th Cir. 2010).
On June 6, 2011, Alvin moved for 28
U.S.C. § 2255 relief. See Doc. 1. On
January 10, 2012, the Magistrate Judge
issued a Report and Recommendation
(“R&R”) recommending denial of Alvin’s

motion, which this Court adopted over
Alvin’s objections. See Docs. 30; 33; 34.
On February 29, 2012, Alvin filed a
Federal Rule of Civil Procedure 59(e)
motion to alter the judgment. See Doc. 36.
Alvin proceeded to file two additional Rule
59(e) motions. See Docs. 38; 39. On May
3, 2012, this Court denied all three motions.
See Doc. 41.
Yet, also on May 3, 2012 and before
Alvin’s receipt of the Court’s
aforementioned Order, Alvin filed an
“Application to Expand Certificate of
Appealability and Enlargement of Time to
File an COA” with the Eleventh Circuit.
See Doc. 44. The circuit construed the
motion as a notice of appeal and sent the
motion to this Court. See id. at 14; see also
F ED. R. APP. P. 4(d).
“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; see also
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.” 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.

articulated in Alvin’s notice of appeal before
its awareness of Alvin’s appeal. See Doc.
41.
Accordingly, a review of the record
demonstrates that Alvin has not made “a
substantial showing of the denial of a
constitutional right.” Miller-El, 537 U.S. at
336. No reasonable jurist would find it
debatable whether Alvin states a valid claim
of the denial of a constitutional right. His
motion for a COA is DENIED.

Slack v. McDaniel, 529 U.S. 473, 484
(2000) (emphasis added).

“An appeal may not be taken [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).

Because Alvin appealed before receipt
of the Court’s May 3, 2012 Order disposing
of his three Rule 59(e) motions, Alvin’s
appeal only covers the Court’s adoption
Order and the Magistrate Judge’s
subsequent order denying Alvin’s first Rule
59(e) motion.
In the R&R, the Magistrate Judge
discerned “no COA-worthy issues” and
concluded that “no COA should issue.” See
Doc. 30 at 33. This Court adopted the R&R.
See Doc. 34. For the reasons expressed in
the R&R, the Court DENIES Alvin’s
request for a COA related to all of the
claims raised in his § 2255 motion.

In the R&R adopted by this Court, the
Magistrate Judge recommended the denial
of IFP status on appeal. See Doc. 30 at 33.
For the reasons expressed by the R&R and
after a review of the issues raised by Alvin,
the Court concludes that Alvin’s claims are
frivolous and his appeal is not taken in good
faith. His implied motion for IFP status on
appeal is DENIED.

Although the Magistrate Judge did not
have authority to deny Alvin’s first Rule
59(e) motion, Alvin presents no COAworthy issues in his first Rule 59(e) motion.
See Doc. 41 at 1-2 (denying Alvin’s motion
as an attempt to re-litigate his previously
rejected claims). Considering the timing of
his notice of appeal, Alvin presumably
sought to raise with the Eleventh Circuit the
same issues addressed in his three motions
for reconsideration. The Court subsequently
considered and disposed of the issues

III. CONCLUSION

Alvin’s request for a COA, see Doc. 45,
is DENIED.
Alvin’s implied motion for IFP status on
appeal, see Doc. 45, is DENIED. The Court
assesses the full filing fee of $455.
2

This 18th day of June 2012.

j? 96' L

1

B. AVANT EDENFEELO, iura
UNiTED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA