Stone v. Epps

Filing 34

Certificate of Appealability Denied re 31 Notice of Appeal. Signed by District Judge Debra M. Brown on 1:14cv147. (rel)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
ABERDEEN DIVISION
TED STONE

PETITIONER

V.

NO. 1:14-CV-147-DMB-RP

CHRISTOPHER B. EPPS

RESPONDENT

ORDER DENYING CERTIFICATE OF APPEALABILITY
This petition for habeas corpus is before the Court on Ted Stone’s motion for a certificate
of appealability. Doc. #32.
I
Procedural History
On May 22, 2017, this Court entered an order adopting the Report and Recommendation
issued by United States Magistrate Judge S. Allan Alexander, which recommended that Ted
Stone’s petition for writ of habeas corpus be dismissed with prejudice. Doc. #28. The Court
issued a final judgment the same day. Doc. #29. On July 5, 2017, Stone filed a notice of appeal,
Doc. #31, and a motion for a certificate of appealability, Doc. #32.
II
Analysis
“Under the Antiterrorism and Effective Death Penalty Act, a certificate of appealability
(COA) must issue before a habeas petitioner can appeal the district court’s refusal to grant the
writ.” Prystash v. Davis, 854 F.3d 830, 835 (5th Cir. 2017) (citing 28 U.S.C. § 2253(c)(1)(A)).
To be entitled to a COA, a petitioner “must make a substantial showing of the denial of a
constitutional right, ... and must show that the accuracy of the district court’s conclusions is
subject to debate among jurists of reason.” Cardenas v. Stephens, 820 F.3d 197, 201 (5th Cir.
2016).

In his motion, Stone argues that this Court ignored certain facts and that the deficiencies
with his petition identified by the Report and Recommendation and the order of adoption were
caused by the ineffectiveness of his counsel, both during the underlying state court proceedings
and in this habeas action.
First, the alleged facts identified by Stone are either incorrect or irrelevant to the Court’s
conclusions.
Next, while a post-conviction counsel’s ineffectiveness may excuse a procedural default
in some circumstances, see Martinez v. Ryan, 566 U.S. 1, 10–12 (2012), Stone cites no authority
for the proposition that alleged ineffectiveness of counsel can excuse a petitioner from the
requirements of proving his case. Because this Court did not find any of Stone’s claims to be
procedurally defaulted, his arguments regarding ineffectiveness of his counsel do not call into
question the merits of this Court’s conclusions.
Accordingly, the Court concludes that Stone has not shown that the dismissal of his
petition would be subject to debate among reasonable jurists. Therefore, his motion for a
certificate of appealability [32] is DENIED.
SO ORDERED, this 4th day of August, 2017.

/s/Debra M. Brown
UNITED STATES DISTRICT JUDGE

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