Ford v. McKinney

Filing 28

ORDER granting 27 Motion for Certificate of Appealability. Signed by Senior Judge Donald E OBrien on 6/21/2013. (des)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
CENTRAL DIVISION
GARY CHRISTOPHER FORD,
Petitioner,

No. 11-CV-3009-DEO

vs.

ORDER

JAMES MCKINNEY, Warden,
Respondent.
____________________
Mr. Ford filed the present Motion for a Certificate of
Appealability on June 20, 2013.

Docket No. 27.

On June 18,

2013, this Court entered a ruling denying Mr. Ford’s Petition
requesting habeas relief under 28 U.S.C. § 2254.

Docket No.

25. The Petitioner, Gary Christopher Ford [hereinafter Mr.
Ford],

is

currently

incarcerated

at

the

Fort

Dodge

Correctional Facility pursuant to a conviction for firstdegree robbery and felon in possession of a firearm.

Docket

No. 1.
I.

ANALYSIS
Under the Code, in most situations, a party must receive

a Certificate of Appealability before that party can appeal a
district court’s ruling on a habeas petition to the circuit

court.1

28

U.S.C.

§2253(c)(2)

gives

the

District

Court

discretionary power to grant a Certificate of Appealability.
Under that section, the Court should only issue a certificate
of appealability if “the applicant has made a substantial
showing of the denial of a constitutional right.”
McDaniel,
2253(c)).

529

U.S.

473,

482

(2000)

(citing

28

Slack v.
U.S.C.

§

In Slack, the Supreme Court defined “substantial

showing” as follows:
To obtain a [certificate of appealability]
under §2253(c), a habeas prisoner must make
a substantial showing of the denial of a
constitutional right, a demonstration that,
under Barefoot [v. Estelle, 463 U.S. at
894,], includes showing 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.’” Barefoot, 463 U.S. at 893, and
n.4, 103 S. Ct. 3383, 77 L. Ed. 2d 1090
(sum[ming] up the “substantial showing”
standard).
Slack, 529 U.S. at 483-84. See also Garrett v. United States,
211 F.3d 1075, 1076-77 (8th Cir. 2000).

1

See, generally, 28 U.S.C. §2253.
2

In his habeas Petition, Mr. Ford raised one primary
argument:

that

his

trial

counsel

failed

to

perform

an

essential duty by neglecting to pursue an alibi defense.2
In this case, Mr. Ford argued his trial counsel was
deficient for failing to pursue an alibi defense.

Typically

to prevail on an ineffective assistance claim, a petitioner
must show that his attorney's "performance was deficient" and
that

"the

deficient

performance

prejudiced

the

defense."

Strickland v. Washington, 466 U.S. 668, 687 (1984).

After

reviewing the record, the Court found that Ms. Samuelson, Mr.
Ford’s trial attorney, worked diligently and thoroughly to
prepare for trial; and she met with the defendant on a nearly
daily basis.

This Court found no failure on Ms. Samuelson's

part to zealously represent her client in spite of his forcing
2

The Court notes that Mr. Ford’s pro se filings discuss
several other issues. In its ruling, the Court found that Mr.
Ford had failed to exhaust those issues, stating that
“[u]nder the exhaustion requirement, a habeas petitioner
challenging a state conviction must first attempt to present
his claim in state court. Harrington v. Richter, 131 S. Ct.
770, 787 (2011) citing 28 U.S.C. § 2254(b); see also Clay v.
Norris, 485 F.3d 1037, 1038-1039 (8th Cir. 2007).” Docket No.
25, ft. 2. Accordingly, the Court did not reach the substance
of those claims, and it would be inappropriate to issue a
Certificate of Appealability regarding those claims. However,
for the reasons set out below, Mr. Ford may challenge the
Court’s Ruling that those claims were not exhausted.
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her to proceed to trial on short notice.

Similarly, a review

of the record showed no deficiency regarding the performance
of Mr. Ford’s prior attorney, Mr. Koll.
appropriate

motions

to

supress,

interviewed potential witnesses.

Mr. Koll filed

investigated

and

then

Regarding the issue of the

alibi witnesses, the Court found that the attorneys had to
make a strategic decision regarding the potential alibi.

Mr.

Koll and later Ms. Samuelson faced a balancing act between
trying

to

prove

Mr.

Ford's

whereabouts,

as

opposed

to

attacking the surveillance videos to show "it can't be him."
Ultimately,

the

two

attorneys

met

to

discuss

the

alibi

defense. The attorneys agreed the alibi was not "tight enough
for it to be real effective."
valid

strategic

decision,

The Court found that to be a

and

denied

Mr.

Ford’s

Habeas

Petition on those grounds. Additionally, the Court found that
even if the attorney’s performance had been deficient, Mr.
Ford failed to show any prejudice.
Even though the Court is satisfied with its ruling, the
Court believes that it is possible that “reasonable jurists
could debate whether...the petition should have been resolved
in a different manner”.

Slack, 529 U.S. at 483-84.
4

The

existence of the circuit courts and the Supreme Court is a
testament to the fact that district courts are not infallible.
The Court's decision in this case was a judgment call, and
this Court is of the opinion that all its judgment calls
should be reviewable.

Mr. Ford’s claim is sufficiently well

founded that a review would be appropriate.
The case of Tiedeman v. Benson, 122 F.3d 518 (8th Cir.
1997) states that in granting a Certificate of Appealability,
this Court must state the issues upon which the applicant may
have

made

a

substantial

constitutional rights.

showing

of

the

denial

of

his

Accordingly, Mr. Ford may appeal the

issues related to the alibi defense and whether this Court
correctly found he had not exhausted his other, pro se claims.
II. CONCLUSION
IT IS THEREFORE HEREBY ORDERED that petitioner’s motion
for certificate of appealability, Docket No. 27, is granted.
IT IS SO ORDERED this 21st day of June, 2013.

__________________________________
Donald E. O’Brien, Senior Judge
United States District Court
Northern District of Iowa

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