Woodruff v. United States of America
Filing
18
ORDER DENYING re 1 MOTION PURSUANT TO 28 U.S.C. § 2255, DENYING CERTIFICATE OF APPEALABILITY CERTIFYING APPEAL NOT TAKEN IN GOOD FAITH AND DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL. Signed by Chief Judge J. Daniel Breen on 4/18/16. (Breen, J.)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
EASTERN DIVISION
TROY WOODRUFF,
Petitioner,
v.
No. 14-1054
UNITED STATES OF AMERICA,
Respondent.
____________________________________________________________________________
ORDER DENYING MOTION PURSUANT TO 28 U.S.C. § 2255,
DENYING CERTIFICATE OF APPEALABILITY
CERTIFYING APPEAL NOT TAKEN IN GOOD FAITH AND
DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL
_____________________________________________________________________________
INTRODUCTION
Before the Court is the pro se 28 U.S.C. § 2255 motion of the Petitioner, Troy Woodruff,
to vacate, set aside or correct his sentence (the "Petition"). (D.E. 1.) Woodruff, Bureau of
Prisons register number 23927-076, is an inmate at the Federal Correctional Institution –
Medium in Forrest City, Arkansas. For the reasons articulated herein, the Petition is DENIED.
PROCEDURAL HISTORY
On May 17, 2010, a federal grand jury, in Case No. 1:10-10052-JDB, returned a onecount indictment against Petitioner, charging him with being a felon in possession of a firearm in
violation of 18 U.S.C. § 922(g). On May 26, 2010, CJA attorney Bob C. Hooper of Brownsville,
Tennessee, was appointed to represent him. Woodruff pleaded guilty on December 6, 2010, and,
on February 14, 2012, was sentenced to 120 months incarceration. He filed a notice of appeal on
February 22, 2012. The sentence was affirmed by the Sixth Circuit Court of Appeals. See
United States v. Woodruff, 735 F.3d 445 (6th Cir. 2013), reh'g & reh'g en banc denied (Dec. 4,
2013).
RELEVANT BACKGROUND
According to the presentence report (the "PSR"), the base offense level under §
2K2.1(a)(2) of the United States Sentencing Commission Guidelines ("U.S.S.G." or the
“Guidelines”) was calculated to be twenty-four "because the defendant committed the instant
offense subsequent to sustaining at least two felony convictions of either a crime of violence or a
controlled substance offense (Aggravated Burglary; Facilitation of Sale of Schedule II)." (PSR
at 5.) Pursuant to § 2K2.1(b)(6), the offense was increased by four levels "because the defendant
used or possessed a firearm in connection with another felony offense (Aggravated Assault)."
(Id. at 6.) Hooper did not object to the calculation and at the sentencing hearing asked the Court
to impose a sentence accordingly.
The PSR further recommended application of U.S.S.G. § 4B1.4 upon a determination that
Woodruff qualified as an armed career criminal under 18 U.S.C. § 924(e). The enhancement
recommendation was based on Petitioner's violent felony convictions for escape, evading arrest
with a motor vehicle and aggravated burglary. During a protracted sentencing hearing, there was
some discussion about the nature of the escape conviction. Hooper submitted to the Court the
affidavit of an eyewitness to the incident, who stated therein that Woodruff absconded from an
unsecured courtroom in the Gibson County, Tennessee, courthouse. Specifically, Petitioner
asked to go to the restroom and did not return. Counsel argued that, under those circumstances,
the escape did not constitute a violent felony for purposes of the Armed Career Criminal Act.
The Court concluded that the conviction would not be considered as a qualified predicate offense
for armed career criminal purposes.
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At sentencing, the Court assigned Woodruff to a base offense level of twenty-four, to
which were added four levels under U.S.S.G. § 2K2.1(b)(6), reduced by three levels for
acceptance of responsibility, for a total offense level of twenty-five. Petitioner's fifteen criminal
history points placed him in a criminal history category of VI, giving him an advisory guideline
range of 110 to 137 months.
The statutory maximum sentence was 120 months.
After
considering the 18 U.S.C. § 3553(a) sentencing factors as they applied to Woodruff, the Court
imposed a sentence at the statutory maximum.
THE PETITION
In his Petition, Woodruff seeks relief based on the following:
1. Counsel was ineffective based on his failure to object to the Court‘s
classification of his Tennessee conviction for “facilitation” as a controlledsubstance offense;
2. The Court’s misapplication of Woodruff’s facilitation conviction resulted in a
miscarriage of justice;
3. Counsel’s failure to object to the calculation of Petitioner’s criminal history
score amounted to ineffective assistance;
4. An intervening change in law warrants resentencing; and
5. Post-conviction conduct should be considered on resentencing.
The Petition also sought appointment of counsel.
LEGAL STANDARD
Section 2255(a) provides that
[a] prisoner in custody under sentence of a court . . . claiming the right to be
released upon the ground that the sentence was imposed in violation of the
Constitution or laws of the United States, . . . or is otherwise subject to collateral
attack, may move the court which imposed the sentence to vacate, set aside or
correct the sentence.
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28 U.S.C. § 2255(a). The statute does not “encompass all claimed errors in conviction and
sentencing.” United States v. Addonizio, 442 U.S. 178, 185 (1979); Meirovitz v. United States,
688 F.3d 369, 370 (8th Cir. 2012). Rather, a petitioner must allege "(1) an error of constitutional
magnitude; (2) a sentence imposed outside the statutory limits; or (3) an error of fact or law that
was so fundamental as to render the entire proceeding invalid." Shaw v. United States, 604 F.
App'x 473, 476 (6th Cir.) (quoting Weinberger v. United States, 268 F.3d 346, 351 (6th Cir.
2001)), cert. denied, 135 S. Ct. 2914 (2015).
ANALYSIS OF PETITIONER'S CLAIMS
Claims 1 Through 3.
These claims are properly analyzed as ineffective assistance of counsel claims under
Strickland v. Washington, 466 U.S. 668, 684-85 (1984). Such claims, upon the necessary
showing, warrant § 2255 relief. See Evans v. United States, Case Nos. 1:09-CR-98-HSM-CCS,
1:13-CV-82-HSM, 2016 WL 1180195, at *1 (E.D. Tenn. Mar. 24, 2016). "A defendant facing
the possibility of incarceration has a Sixth Amendment right to counsel at all 'critical stages' of
the criminal process, and a sentencing hearing is one type of 'critical stage' at which the right to
counsel attaches." McPhearson v. United States, 675 F.3d 553, 559 (6th Cir. 2012) (quoting
Benitez v. United States, 521 F.3d 625, 630 (6th Cir. 2008)).
In order to prevail on an ineffective assistance claim, a petitioner must demonstrate that
"defense counsel made errors so serious that counsel was not functioning as the 'counsel'
guaranteed the defendant by the Sixth Amendment and that defense counsel's deficient
performance caused prejudice." Winborn v. United States, 602 F. App'x 298, 300 (6th Cir. 2015)
(citing Strickland, 466 U.S. at 687) (some internal quotation marks omitted). "Unless the
petitioner demonstrates both deficient performance and prejudice, it cannot be said that the
4
conviction or sentence resulted from a breakdown in the adversary process that renders the result
unreliable." Goward v. United States, 569 F. App'x 408, 412 (6th Cir. 2014) (internal alterations
& quotation marks omitted).
“Deficient performance means that counsel’s representation fell below an objective
standard of reasonableness.” Moreland v. Robinson, 813 F.3d 315, 328 (6th Cir.) (quoting
Nichols v. Heidle, 725 F.3d 516, 539 (6th Cir. 2013)) (internal quotation marks omitted), pet. for
cert. docketed, (U.S. Apr. 12, 2016) (No. 15-8902).
There is a "strong presumption that
counsel's representation was within the wide range of reasonable, professional assistance." Smith
v. Jenkins, 609 F. App'x 285, 292 (6th Cir. 2015) (internal quotation marks omitted). "The
question is whether an attorney's representation amounted to incompetence under prevailing
professional norms, not whether it deviated from best practices or most common custom." Id.
(internal quotation marks omitted). A petitioner claiming ineffective assistance of counsel faces
a heavy burden. Pough v. United States, 442 F.3d 959, 966 (6th Cir. 2006).
Petitioner’s claims focus on his attorney’s failure to object to the classification of his
facilitation conviction and the calculation of his criminal history score. These assertions will be
addressed seriatim.
Failure to Object to Classification of Facilitation Conviction
According to the PSR, Woodruff’s base offense level was set at twenty-four because he
had two prior felony convictions of either a crime of violence or a controlled substance offense.
In preparing the report, the probation officer determined that Petitioner's felony conviction for
facilitation of sale of a Schedule II controlled substance constituted a controlled substance
offense. This determination was not challenged at the sentencing hearing and was accepted by
the Court.
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The Guidelines provide for the application of a base offense level of twenty-four “if the
defendant committed any part of the instant offense subsequent to sustaining at least two felony
convictions of either a crime of violence or a controlled substance offense.”
U.S.S.G. §
2K2.1(a)(2). A controlled substance offense is defined as "an offense under federal or state law,
punishable by imprisonment for a term exceeding one year, that prohibits the manufacture,
import, export, distribution, or dispensing of a controlled substance . . . or the possession of a
controlled substance . . . with intent to manufacture, import, export, distribute, or dispense."
U.S.S.G. § 4B1.2(b). Such an offense includes the offenses of "aiding and abetting, conspiring,
and attempting to commit such offenses." Id. at cmt. n.1. Woodruff's conviction for facilitation
was under Tennessee law, which provides that "[a] person is criminally responsible for the
facilitation of a felony, if, knowing that another intends to commit a specific felony, but without
the intent required for criminal responsibility . . ., the person knowingly furnishes substantial
assistance in the commission of the felony." Tenn. Code Ann. § 39-11-403(a). The statute
"applies to a person who facilitates criminal conduct of another by knowingly furnishing
substantial assistance to the perpetrator of a felony, but who lacks the intent to promote or assist
in, or benefit from, the felony's commission." Id. cmt.
On direct appeal, Woodruff argued that the district court’s categorization of facilitation as
a controlled substance offense was improper. See Woodruff, 735 F.3d at 448. The Sixth Circuit
agreed. Id. at 449-50. However, the court stated:
Despite our conclusion that facilitation in Tennessee is not a controlledsubstance offense, the district court’s error was not plain. Plain error can occur at
the time of a district court’s decision and at the time of appellate review.
Henderson v. United States, [], 133 S. Ct. 1121, 1124-25[] (2013) (holding that
error is “plain” under Fed. R. Crim. P. 52(b) if it is plain as of the time of
appellate review). At the time of the district court’s decision, the law in this
circuit consisted of the unpublished case United States v. Wicks, No. 95-5478,
1997 WL 259375, at *3 (6th Cir. May 15, 1997) (holding that this question does
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not have a “clear or obvious” answer and affirming the district court judgment on
plain-error review). There was thus no controlling law before the district court.
Moreover, “[United States v.] Dolt[, 27 F.3d 235 (6th Cir. 1994)] and [United
States v.] Loranzo[, 944 F.2d 73 (2d Cir. 1991)] illustrate the highly technical
nature” of the analysis required to reach the correct result. [Wicks, 1997 WL
259375, at *3.] In addition, an application note to the Guidelines makes the result
that we have reached even less obvious. Added in 1997, it states that “[u]sing a
communications facility in committing, causing, or facilitating a drug offense (21
U.S.C. § 843(b)) is a ‘controlled substance offense’ if the offense of conviction
established that the underlying offense (the offense committed, caused, or
facilitated) was a ‘controlled substance offense.’” U.S. Sentencing Guidelines
Manual § 4B1.2 cmt. n.1 (1998). Section 843(b) prohibits a person from
“knowingly or intentionally . . . us[ing] any communication facility in committing
or in causing or facilitating the commission of any act or acts constituting [certain
felonies].” 21 U.S.C. § 843(b). The presence of the word “facilitating” in the
definition of this federal offense could possibly lead a court to conclude that
facilitation under Tennessee law is also a controlled-substance offense.
However, facilitation has different meanings in these two contexts. As
discussed above, facilitation under Tennessee law is distinct from aiding and
abetting because a defendant convicted of facilitation lacks “the intent to promote
or assist in, or benefit from, the felony’s commission.” Tenn. Code Ann. § 39-11403 cmt. By contrast, the Supreme Court has explained that “facilitate” as used in
§ 843(b) has a meaning equivalent to “aid and abet,” relying upon the Black’s
Law Dictionary definition of “facilitation” as “[t]he act or an instance of aiding or
helping; . . . the act of making it easier for another person to commit a crime.”
Abuelhawa v. United States, 556 U.S. 816, 821[] (2009) (alterations in original).
An individual who aids or abets must “wish[ ] to bring about [the crime and] seek
by his action to make it succeed.” Rattigan v. United States, 151 F.3d 551, 55758 (6th Cir. 1998) (quoting United States v. Morrow, 977 F.2d 222, 230 (6th Cir.
1992) (en banc)). Because a conviction under § 843(b) requires proof of a
different state of mind than a conviction for facilitation in Tennessee, the former
qualifies as a controlled-substance offense while the latter does not. The analysis
required to reach this conclusion, however, is nuanced and cannot fairly be
described as obvious or clear. Therefore, the district court’s error was not plain
when made.
Nor was the district court’s error plain at the time of appellate review.
Error is “plain” within the meaning of Federal Rule of Criminal Procedure 52(b)
if the error is plain at the time of appellate review. Henderson, 133 S. Ct. at
1124-25 (2013). “[A]n appellate court must apply the law in effect at the time it
renders its decision.” Id. at 1129 (internal citations omitted); United States v.
Schooner Peggy, 5 U.S. 103[] (1801) (“[I]f subsequent to the judgment and before
the decision of the appellate court, a law intervenes and positively changes the
rule which governs, the law must be obeyed, or its obligation denied.”). Here,
there was no intervening change of law between the time of Woodruff’s sentence
7
and the time of appellate review governing whether facilitation under Tennessee
law is a controlled-substance offense. Cf. Henderson, 133 S. Ct. at 1125 (finding
an intervening change of law between defendant’s sentence and time of appellate
review created plain error as of the later time). Where there has been no
intervening change of law, the principle of Henderson and Schooner Peggy does
not permit us to fashion a new rule and then apply it to determine whether the
district court’s error was plain. If it were otherwise, we would conduct de novo
review, not plain error review.
We conclude that the district court did err in its conclusion that facilitation
under Tennessee law is a controlled-substance offense because, in light of our
definitive holding, it is not. Its error was not plain, however, because the state of
the law was both uncertain and not obvious at the time of its decision and at the
time of appellate review.
Woodruff, 735 F.3d at 450-51.
The Sixth Circuit has recognized that “counsel is not ineffective for failing to predict the
development of the law.” Thompson v. Warden, 598 F.3d 281, 288 (6th Cir. 2010) (citing Lott v.
Coyle, 261 F.3d 594, 609 (6th Cir. 2001)). This is true where the law is unclear at the time of the
representation and counsel should not have reasonably anticipated the courts’ later resolution of
the issue. See Lott, 261 F.3d at 608-09; see also Alcorn v. Smith, 781 F.2d 58, 62 (6th Cir. 1986)
(“nonegregious errors such as failure to perceive or anticipate a change in the law . . . generally
cannot be considered ineffective assistance of counsel.”). Conversely, “counsel’s failure to raise
an issue whose resolution is clearly foreshadowed by existing decisions might constitute
ineffective assistance of counsel.” Thompson, 598 F.3d at 288 (emphasis added).
“Only in a rare case will a court find ineffective assistance of counsel based upon a trial
attorney’s failure to make an objection that would have been overruled under the then-prevailing
law.” Lucas v. O’Dea, 179 F.3d 412, 420 (6th Cir. 1999); see also Baker v. Voorhies, 392 F.
App’x 393, 400 (6th Cir. 2010) (noting that the exception where subsequent development in the
law was clearly foreshadowed by existing decisions is a narrow one). In Lucas, the post-
8
sentencing decisions clarifying the law on the issue which was the subject of the habeas petition
described the law prior to his sentencing as being in a “curious state.” Lucas, 179 F.3d at 420.
Here, the appellate court discussed at some length the dearth of clear caselaw governing
the classification of a facilitation offense in Tennessee, noting that the only case on point was
unpublished, that there was no controlling law before the district court, that the proper analysis
necessary to reach the correct result was “highly technical” and “nuanced,” and that the state of
the law was neither obvious nor certain. Under these circumstances, it can hardly be said that the
solution to the question of whether facilitation under Tennessee law constituted a controlledsubstance offense was plainly foreshadowed by existing decisions. As Strickland itself instructs,
“[a] fair assessment of attorney performance requires that every effort be made to eliminate the
distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct,
and to evaluate the conduct from counsel’s perspective at the time.” Strickland, 468 U.S. at 689;
see also Hicks v. United States, 122 F. App’x 253, 258 (6th Cir. 2005) (“counsel’s performance
should not be reviewed with hindsight, but judged within the context of the circumstances at the
time of the alleged errors”). Even if an outcome resulting in a longer sentence for the Petitioner
constituted prejudice, absent a showing that Hooper’s representation was deficient, an ineffective
assistance of counsel claim cannot survive.
Woodruff’s claims arising from the Court’s
classification of the facilitation conviction are DISMISSED.
Failure to Object to Calculation of Criminal History Score
The Petitioner argues that his attorney’s failure to object to the addition of points to his
criminal history calculation based on convictions for theft of property over $500 and facilitation
constituted ineffective assistance of counsel. These claims also fail.
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Theft of Property Conviction
In calculating Woodruff’s criminal history score, the probation officer assigned two
points for a theft of property under $500 conviction he received in Memphis, Tennessee, in July
2002 for which he was sentenced to sixty days in jail. Petitioner maintains that, because he was
actually incarcerated for only thirty days, counsel’s failure to object to imposition of the extra
points amounted to ineffective assistance.
The Guidelines provide for a two-point increase in a defendant’s criminal history score
“for each prior sentence of imprisonment of at least sixty days[.]” U.S.S.G. § 4A1.1(b). The
term “sentence of imprisonment” is defined under the Guidelines as “a sentence of incarceration
and refers to the maximum sentence imposed.” U.S.S.G. § 4A1.2(b)(1). That is, in the case of a
determinate sentence of sixty days, the stated maximum is sixty days. See U.S.S.G. § 4A1.2 cmt.
2 (“For the purposes of applying § 4A1.1(a), (b), or (c), the length of a sentence of imprisonment
is the stated maximum (e.g., in the case of a determinate sentence of five years, the stated
maximum is five years[.]”). In order to meet this definition, “the defendant must actually have
served a period of imprisonment on [that] sentence.” Id. The comment clarifies that “criminal
history points are based on the sentence pronounced, not the length of time actually served.” Id.
However, “[i]f part of a sentence of imprisonment is suspended, ‘sentence of
imprisonment’ refers only to the portion that was not suspended.” U.S.S.G. § 4A1.2(b)(2). A
‘suspended sentence’ pursuant to this subsection “refers to the authority of a court to suspend a
sentence, not a government agency.” See United States v. Brothers, 209 F. App’x 460, 463 (6th
Cir. 2006) (emphasis omitted).
It is undisputed that the sentence imposed upon Woodruff for theft was sixty days. While
Petitioner did not serve that much time, there is no indication in the record, nor has he claimed,
10
that the state’s failure to imprison him beyond thirty days was the result of a court-mandated
suspended sentence. Because there is nothing in the record to suggest the application of criminal
history points for this conviction was in error, counsel’s failure to object to the calculation could
not constitute ineffective assistance.
Facilitation Conviction
Petitioner also takes issue with his attorney’s failure to object to the addition of three
criminal history points based on his facilitation conviction. According to a copy of the judgment
provided by Woodruff, he was sentenced to three years of incarceration with supervised
probation. He also received pretrial jail credit for serving 184 days. He insists that, because he
served 184 days rather than three years, the allocation of points was unjustified.
U.S.S.G. § 4A1.1(a) provides for the addition of three points for “each prior sentence of
imprisonment exceeding one year and one month.” As noted in the preceding paragraphs,
“sentence of imprisonment” refers to the maximum sentence imposed.
See U.S.S.G. §
4A1.2(b)(1). The three-year sentence imposed in this case clearly exceeded one year and one
month. However, Woodruff submits, and the PSR indicates, that he received a suspended
sentence. Thus, the “sentence of imprisonment” for purposes of the criminal history calculation
is subject to the exception set forth in U.S.S.G. § 4A1.2(b)(2). The portion of Petitioner’s
sentence not suspended was 184 days.
Even if Woodruff is correct in this assertion, his claim lacks merit. As noted in the
previous section of the Guidelines, under U.S.S.G. § 4A1.1(b), a two-point increase in a
defendant’s criminal history score is added “for each prior sentence of imprisonment of at least
sixty days[.]” Petitioner’s sentence for facilitation would easily fall into this category, setting his
total number of criminal history points at fourteen rather than fifteen. Because his placement
11
into the criminal history category of VI required criminal history points numbering thirteen or
more, any miscalculation would have landed him in the same category and, thus, would not have
affected his sentence. Consequently, any failure on Hooper’s part to object to the calculation
was not prejudicial and, therefore, not ineffective assistance of counsel. See United States v.
Pomales, 268 F. App’x 419, 423 (6th Cir. 2008) (per curiam) (where the criminal history point
reduction for which petitioner claimed his attorney should have argued would not have changed
his advisory sentencing range, prejudice prong could not be established); Napier v. United States,
6:12-cv-07213-GFVT-EBA, 2015 WL 8481858, at *3 (E.D. Ky., Dec. 9, 2015) (counsel’s failure
to object to criminal history point was not ineffective assistance of counsel where objection
would not have changed the court’s ultimate calculation of appropriate criminal history
category); see also Strickland, 466 U.S. at 694 (to show prejudice, “[t]he defendant must show
that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.”). Petitioner’s claim associated with the calculation of
criminal history points with respect to the facilitation conviction is DENIED.
Claim 4.
In Claim 4, Woodruff seeks resentencing. To the extent, if any, that this claim extends
beyond ineffective assistance of counsel, for which, as articulated above, he is not entitled to
relief in this case, the Court notes that a defendant may obtain sentencing relief where he was
“sentenced to a term of imprisonment based on a sentencing range that was subsequently . . .
lowered by the Sentencing Commission,” upon consideration by the court of certain factors set
forth in 18 U.S.C. § 3553(a). 18 U.S.C. § 3582(c)(2). By its terms, this provision “applies only
to a limited class of prisoners.” Dillon v. United States, 560 U.S. 817, 825-26 (2010). Woodruff
has not asserted that he seeks relief under § 3582(c)(2) or that a Guideline under which he was
12
sentenced has been lowered by the Sentencing Commission. Thus, he has made no showing that
he is a member of that limited class of prisoners to which the statute applies.
Claim 5.
Finally, Woodruff requests resentencing with the Court’s consideration of his postconviction conduct.
For the reasons set forth herein, the Court has found no basis for
resentencing. While Petitioner’s activities are to be applauded, post-conviction conduct does not
provide grounds for relief under § 2255. Lebron v. United States, Civ. No. 12-2925 (JBS), 2013
WL 132675, at *6 (D.N.J. Jan. 9, 2013); United States v. Ford, Nos. 5:10-CR-72-KSF, 5:11-CV7181-KSF, 2011 WL 5508842, at *2 (E.D. Ky. Nov. 9, 2011); Mullen v. United States, Civ. No.
CCB-10-1879, 2011 WL 3819797, at *2 (D. Md. Aug. 25, 2011).
Appointment of Counsel.
“The decision to appoint counsel for a federal habeas petitioner is within the discretion of
the court and is required only where the interests of justice or due process so require.” Mira v.
Marshall, 806 F.2d 636, 638 (6th Cir. 1986). The appointment of counsel is mandatory only
when an evidentiary hearing is required. See Rule 8(c), Rules Governing § 2255 Proceedings for
the United States Dist. Cts. (“If an evidentiary hearing is warranted, the judge must appoint an
attorney to represent a moving party who qualifies to have counsel appointed under 18 U.S.C. §
3006A.).
“Having decided that the files and records in this case conclusively show that
[Petitioner] is not entitled to relief under 28 U.S.C. § 2255, the Court, in its discretion, further
determines that neither the interests of justice nor due process requires the appointment of
counsel.” Logan v. United States, File No. 1:15-cv-889, 2016 WL 96179, at *4 (W.D. Mich. Jan.
8, 2016).
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CONCLUSION
Because the issues presented by Woodruff are meritless, they are DISMISSED. The
Clerk of Court is DIRECTED to enter judgment for the United States.
APPEAL ISSUES
Twenty-eight U.S.C. § 2253 requires the district court to evaluate the appealability of its
decision denying a § 2255 motion and to issue a certificate of appealability (“COA”) “only if the
applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. §
2253(c)(2); see also Fed. R. App. P. 22(b).
No § 2255 movant may appeal without this
certificate. The COA must also indicate "which specific issue or issues satisfy" the required
showing.
28 U.S.C. § 2253(c)(3).
A “substantial showing” is made when the movant
demonstrates 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 quotation marks omitted). A COA does not require a showing that the appeal
will be successful. Id. at 337. Courts, however, should not issue a COA as a matter of course.
Bradley v. Birkett, 156 F. App’x 771, 773 (6th Cir. 2005) (per curiam).
In this case, for the reasons previously stated, the issues raised by the Petitioner lack
substantive merit and, therefore, he cannot present a question of some substance about which
reasonable jurists could differ. The Court therefore DENIES a certificate of appealability.
The Sixth Circuit has held that the Prison Litigation Reform Act of 1995, 28 U.S.C. §
1915(a)-(b), does not apply to appeals of orders denying § 2255 motions. Kincade v. Sparkman,
117 F.3d 949, 951 (6th Cir. 1997). Rather, to appeal in forma pauperis in a § 2255 case, and
thereby avoid the appellate filing fee required by 28 U.S.C. §§ 1913 and 1917, the prisoner must
14
obtain pauper status pursuant to Rule 24(a) of the Federal Rules of Appellate Procedure. Id. at
952. The Rule provides that a party seeking pauper status on appeal must first file a motion in
the district court, along with a supporting affidavit. Fed. R. App. P. 24(a)(1). However, the Rule
also provides that, if the district court certifies that an appeal would not be taken in good faith, or
otherwise denies leave to appeal in forma pauperis, the prisoner must file his motion to proceed
in forma pauperis in the appellate court. See Fed. R. App. P. 24(a)(4)-(5).
In this case, for the same reasons it denies a COA, the Court determines that any appeal
would not be taken in good faith. It is therefore CERTIFIED, pursuant to Rule 24(a), that any
appeal in this matter would not be taken in good faith. Leave to appeal in forma pauperis is
DENIED. If Petitioner files a notice of appeal, he must also pay the full appellate filing fee or
file a motion to proceed in forma pauperis and supporting affidavit in the Sixth Circuit Court of
Appeals within thirty days.
IT IS SO ORDERED this 18th day of April 2016.
s/ J. DANIEL BREEN
CHIEF UNITED STATES DISTRICT JUDGE
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