Pappas v. Prince et al

Filing 29

Certificate of Appealability Denied by USDC re 26 MOTION for Certificate of Appealability. Signed by Judge Nannette Jolivette Brown.(jjl)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
VASILIOS PAPPAS

CIVIL ACTION

VERSUS

NO. 12-423

HOWARD PRINCE, WARDEN

SECTION “G”
ORDER

Before the Court is Petitioner Vasilios Pappas’s “Motion for Issuance of a Certificate of
Appealability.”1 “A COA [Certificate of Appealability] will issue only if the requirements of [28
U.S.C.] § 2253 have been satisfied.”2 Section 2253(c) permits issuance of a COA when “a petitioner
has made a ‘substantial showing of the denial of a constitutional right.’”3 “Under this standard, when
a district court denies habeas relief by rejecting constitutional claims on their merits, ‘the petitioner
must demonstrate that reasonable jurists would find the district court’s assessment of the
constitutional claims debatable or wrong.’”4 When the district court denies the petition on procedural
grounds without reaching the merits, the petitioner must show “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.”5
The petitioner must demonstrate “‘something more than the absence of frivolity or the
existence of mere ‘good faith’ on his or her part.’”6 However, a COA should not be denied “merely

1

Rec. Doc. 26.

2

Miller-El v. Cockrell, 537 U.S. 322, 336 (2003).

3

Id. (quoting 28 U.S.C. § 2253(c)).

4

McGowen v. Thaler, 675 F.3d 482, 498 (5th Cir. 2012) (quoting Slack v. McDaniel, 529 U.S. 473, 484

5

Id. (quoting Slack, 529 U.S. at 484).

6

Id. (quoting Miller-El, 537 U.S. at 338).

(2000)).

because [the court] believes the applicant will not demonstrate an entitlement to relief.”7 In addition
“any doubts as to whether a COA should be granted are resolved in the petitioner’s favor,”8 and the
severity of the penalty may be a consideration in deciding whether a petitioner has made a
“substantial showing.”9
As the Court explained in its order denying Petitioner’s claims, the AEDPA limits the power
of federal courts to grant Writs of Habeas Corpus in cases where a state court has adjudicated the
petitioner’s claim on the merits.10 Under 28 U.S.C. § 2254(d)(1), a federal court must defer to the
state court’s decision as to questions of law and mixed questions of law and fact unless it “was
contrary to, or involved an unreasonable application of clearly established federal law, as determined
by the Supreme Court.”11 Moreover, “review under § 2254(d)(1) is limited to the record that was
before the state court that adjudicated the claim on the merits.”12
In its October 18, 2013 Order and Reasons, the Court found it would not be an unreasonable
determination by the state court, based upon the record before it, to determine that the concessions
made by the State would have been such a strong inducement to plead guilty that Petitioner would
have done so even if his lawyer had competently advised Petitioner that he was not eligible for
“good time” early release and that therefore he was not prejudiced even if his counsel was
ineffective. Petitioner contends that all records he relies upon now were available during the state
court proceeding, but that his attorney failed to utilize them. The affidavits that Petitioner produced
for the first time when objecting to the Magistrate Judge’s Report and Recommendation with the

7

Id. (quoting Miller-El, 537 U.S. at 337).

8

Id.

9

See id.; Hill v. Johnson, 2010 F.3d 481 484 (5th Cir. 2000) (“[W]e may consider the severity of his
penalty in determining whether he has met his ‘substantial showing’ burden.”).
10

See Hill, 210 F.3d at 485.

11

28 U.S.C. §2254(d)(1).

12

Cullen v. Pinholster, 131 S.Ct. 1388, 1398 (2011).

district court stated that early “good time” release was important to his decision to plead guilty. The
affidavits only further supported the allegations Petitioner advanced at the time his case was under
review by the state court. The state court rejected Petitioner’s claims on the merits finding that even
if his attorney was ineffective such ineffectiveness was not prejudicial to him. Therefore, this
Court’s inability to accept such new evidence is of no moment. Petitioner has made no new
argument demonstrating that the state court’s decision denying his claim was contrary to, or
involved an unreasonable application of clearly established federal law, as required by the Supreme
Court.
Further, Petitioner’s reliance on Martinez v. Ryan is misplaced. In Martinez v. Ryan, the
Supreme Court held that inadequate assistance of counsel at initial-review collateral proceedings
may establish cause for a prisoner’s procedural default of a claim of ineffective assistance at trial.13
In the instant case, Petitioner was not procedurally defaulted from raising his ineffective assistance
of counsel claim. He raised the claim during his state post-conviction relief proceedings and on
federal habeas review.
Accordingly, the Court finds that reasonable jurists could not find its assessment of the
constitutional claims debatable, and thus Petitioner has not made the requisite substantial showing.
Accordingly,
IT IS HEREBY ORDERED that a Certificate of Appealability is DENIED.
NEW ORLEANS, LOUISIANA, this

day of September, 2014.

________________________________________
NANNETTE JOLIVETTE BROWN
UNITED STATES DISTRICT JUDGE

13

Martinez v. Ryan, 132 S.Ct. 1309 (2012).