Robert L. Hinkle
ORDER DENYING THE § 2255 MOTION
The defendant has moved under 28 U.S.C. § 2255 for relief from his judgment of conviction. The motion is before the court on the magistrate judge's report and recommendation, ECF No. 40. No objections have been filed. This order accepts the report and recommendation and denies the § 2255 motion.
The defendant pleaded guilty and was sentenced in 2007 to the minimum mandatory term of 20 years in custody. He did not appeal. He now alleges that he told his attorney to appeal and that the attorney rendered ineffective assistance by failing to do so. But the one-year period for filing a § 2255 motion asserting this ineffective assistance ran, at the latest, from the date on which, with diligence, the defendant could have discovered that the attorney did not file a notice of appeal. See 28 U.S.C. § 2255(f)(4). With diligence, the defendant could have discovered that an appeal had not been filed by 2008 or 2009 at the latest. The one-year limitations period thus ended long before the 2014 filing of the pending § 2255 motion. And, as correctly set out in the report and recommendation, the defendant has alleged no facts that would support equitable tolling. The § 2255 motion must be denied as untimely.
A defendant may appeal the denial of a § 2255 motion only if the district court or court of appeals issues a certificate of appealability. Under 28 U.S.C. § 2253(c)(2), a certificate of appealability may issue "only if the applicant has made a substantial showing of the denial of a constitutional right." Miller-El v. Cockrell, 537 U.S. 322, 335-38 (2003); Slack v. McDaniel, 529 U.S. 473, 483-84 (2000); Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983); see also Williams v. Taylor, 529 U.S. 362, 402-13 (2000) (setting out the standards applicable to a § 2254 petition on the merits). As the Court said in Slack:
To obtain a COA under § 2253(c), a habeas prisoner must make a substantial showing of the denial of a constitutional right, a demonstration that, under
Barefoot, 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."
Slack, 529 U.S. at 483-84 (quoting
Barefoot, 463 U.S. at 893 n.4). Further, in order to obtain a certificate of appealability when dismissal is based on procedural
grounds, a petitioner must show, "at least, 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."
Slack, 529 U.S. at 484.
The defendant has not made the required showing. This order thus denies a certificate of appealability. Because the defendant has not obtained—and is not entitled to—a certificate of appealability, any appeal by the defendant will not be taken in good faith. I certify under Federal Rule of Appellate Procedure 24(a) that any appeal will not be taken in good faith and that the defendant is not otherwise entitled to proceed in forma pauperis on appeal. Accordingly,
IT IS ORDERED:
1. The clerk must enter a judgment stating, "The defendant's motion for relief under 28 U.S.C. § 2255 is DENIED.
2. The defendant's application for a certificate of appealability is DENIED.
3. Leave to proceed on appeal in forma pauperis is DENIED.
Robert L. Hinkle
United States District Judge