Opinion
CASE NO. 2:08-cv-877, CRIM. NO. 2:01-cr-126.
December 13, 2010
OPINION AND ORDER
On November 18, 2010, final judgment was issued dismissing petitioner's motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255. This matter now is before the Court on petitioner's December 1, 2010, notice of appeal and request for a certificate of appealability. Docs. 157, 158. For the reasons that follow, petitioner's request for a certificate of appealability, Doc. 158, is GRANTED.
In this § 2255 petition, petitioner asserts new evidence requires his conviction to be vacated, and that he was denied the effective assistance of counsel before trial, at trial and on appeal. On November 18, 2010, this Court denied petitioner's request for an evidentiary hearing and dismissed all of his claims on the merits, but granted the petition for a writ of habeas corpus on petitioner's claim that, in view of United States v. Ossa-Gallegos, 491 F.3d 537, 538-39 (6th Cir. 2007) (holding that a period of supervised release is not tolled during the time a defendant is outside of the United States as a result of deportation), overruling United States v. Isong, 111 F.3d 428 (6th Cir. 1997), ordering that an amended Judgment Entry of Sentence be issued deleting this provision from petitioner's sentence. Doc. 156.
Petitioner asserts that he is actually innocent of the charge against him, and seeks a certificate of appealability on his claim that his conviction should be vacated or a new trial granted (claim one) because he has submitted an affidavit from Michael Wile indicating that the alleged victim, Mohammed Bousfiha, was in Columbus, Ohio, on the dates that Mohammed allegedly had been kidnapped and was being held in Morocco. He additionally seeks a certificate of appealability on his claims that he was denied the effective assistance of counsel because his attorney failed to adequately prepare for trial, failed to object to erroneous jury instructions resulting in constructive amendment of the indictment, failed to object to ex parte jury instructions, and failed to object to the District Court's denial of his motion for a new trial. See Request for a Certificate of Appealabililty, Doc. 158.
When a claim has been denied on the merits, a certificate of appealability may issue only if the petitioner "has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). This standard is a codification of Barefoot v. Estelle, 463 U.S. 880 (1983). See Slack v. McDaniel, 529 U.S. 473, 484 (2000) (recognizing codification of Barefoot in 28 U.S.C. § 2253(c)(2)). To make a substantial showing of the denial of a constitutional right, 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.'" Slack, 529 U.S. at 484 (quoting Barefoot, 463 U.S., at 893, n. 4).
Upon review of the record, this Court is persuaded that reasonable jurists could debate whether claim one, in which petitioner asserts that his sentence should be vacated or a new trial granted based on the affidavit of Michael Wile, should have been resolved differently. Therefore, his request for a certificate of appealability on this claim is GRANTED. However, petitioner has failed to establish that reasonable jurists would debate whether his claims of ineffective assistance of counsel should have been resolved differently. Therefore, his request for a certificate of appealability on these claims is DENIED.
The following issue is certified for appeal:
Should petitioner's conviction be vacated or he be granted a new trial based on the affidavit of Michael Wile?