Posey v. United States of America
ORDER DENYING CERTIFICATE OF APPEALABILITY signed by Judge David M. Lawson on 10/18/2017. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(ab)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
WILLIAM LEM POSEY, II,
Criminal Case Number 94-00096
Civil Case Number 16-01503
Honorable David M. Lawson
UNITED STATES OF AMERICA,
ORDER DENYING CERTIFICATE OF APPEALABILITY
The petitioner filed a motion under 28 U.S.C. § 2255 on June 22, 2016. On October 18,
2017, the Court entered an order denying that motion as untimely, because the Sixth Circuit has held
that whether the mandatory Sentencing Guidelines are subject to a vagueness challenge is an open
question. Raybon v. United States, --- F.3d ---, 2017 WL 3470389, at *2 (6th Cir. Aug. 14, 2017).
Therefore, the Supreme Court has not announced a new rule of constitutional law made retroactive
to matters on collateral review that would restart the one-year statute of limitations to file a motion
to vacate under 28 U.S.C. § 2255. Ibid.
Pursuant to Rule 11 of the Rules Governing Section 2255 Proceedings, which was amended
as of December 1, 2009:
The district court must issue or deny a certificate of appealability when it enters a
final order adverse to the applicant. . . . If the court issues a certificate, the court must
state the specific issue or issues that satisfy the showing required by 28 U.S.C. §
2253(c)(2). If the court denies a certificate, a party may not appeal the denial but
may seek a certificate from the court of appeals under Federal Rule of Appellate
Rule 11, Rules Governing Section 2255 Proceedings.
A certificate of appealability may issue “only if the applicant has made a substantial showing
of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Courts must either issue a certificate
of appealability indicating which issues satisfy the required showing or provide reasons why such
a certificate should not issue. 28 U.S.C. § 2253(c)(3); Fed. R. App. P. 22(b); In re Certificates of
Appealability, 106 F.3d 1306, 1307 (6th Cir. 1997). To receive a certificate of appealability, “a
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.” Miller-El v. Cockrell, 537 U.S. 322, 336 (2003)
(internal quotes and citations omitted).
The Court finds that reasonable jurists could not debate the Court’s conclusion that the
petitioner’s motion to vacate is untimely, because the Sixth Circuit found that “the Supreme Court
has not decided whether the residual clause of the mandatory Sentencing Guidelines is
unconstitutionally vague.” Raybon, --- F.3d ---, 2017 WL 3470389, at *3. Therefore, the
petitioner’s motion is untimely and not subject to any exceptions under § 2255(f)(3). The Court
therefore will deny a certificate of appealability.
Accordingly, it is ORDERED that a certificate of appealability is DENIED.
s/David M. Lawson
DAVID M. LAWSON
United States District Judge
Sitting by special designation
Dated: October 18, 2017
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?