Opinion
CRIM. NO. 15-000614 SOM
04-21-2020
UNITED STATES OF AMERICA, Plaintiff, v. GREGORY SCHER, Defendant.
ORDER DECLINING TO ISSUE CERTIFICATE OF APPEALABILITY
On April 16, 2020, Defendant Gregory Scher filed a notice of appeal that challenged this court's denial of his motion to find the Government in "default." On April 20, the Ninth Circuit issued an order stating that an appellate briefing schedule would not be set until the district court determined whether a certificate of appealability should issue. This court declines to issue a certificate of appealability.
Scher's appeal arises out of the 28 U.S.C. § 2255 petition he filed on February 5, 2020. ECF No. 250. The Government's opposition was due on March 11, 2020. However, on February 14, 2020, the Government filed a motion that sought an order finding that Scher had waived the attorney-client privilege with respect to his § 2255 petition. ECF No. 252. On February 27, 2020, this court granted the Government's motion. In the same order, this court "extend[ed] the Government's response deadline to the petition from March 11, 2020, to April 13, 2020." ECF No. 254, PageID # 1806. This court subsequently granted an additional extension. ECF No. 261.
Nevertheless, when the Government did not file a response to Scher's § 2255 petition by March 11, 2020, Scher filed a motion asking this court to find the Government in "default." ECF No. 258, PageID # 1812. After this court denied Scher's motion, Scher appealed. ECF No. 262.
Scher is not entitled to a certificate of appealability for two reasons. First, 28 U.S.C. § 2253, which governs appeals in habeas corpus proceedings, only permits defendants to appeal a final order rejecting their petition. See 28 U.S.C. § 2253(a) ("In a habeas corpus proceeding or a proceeding under section 2255 before a district judge, the final order shall be subject to [appellate] review[.]"); see also Ninth Circuit Local Rule 22-1 ("Appeals from the district court's denial of relief in either a 28 U.S.C. § 2254 or a § 2255 proceeding are governed by the procedures set forth in FRAP 4 and 22(b)."). This court has not yet issued a final order deciding Scher's § 2255 petition. The briefing on that petition has not even closed. Scher's notice of appeal is therefore defective, because it challenges an interlocutory order. See generally Nascimento v. Dummer, 508 F.3d 905, 908 (9th Cir. 2007) (holding that a notice of appeal was defective because it "sought to appeal non-appealable orders"); United States v. Garner, 663 F.2d 834, 837 (9th Cir. 1981) ("Where the deficiency in a notice of appeal, by reason of . . . reference to a nonappealable order, is clear to the district court, it may disregard the purported notice of appeal and proceed with the case, knowing that it has not been deprived of jurisdiction.").
Second, even if Scher had not challenged an interlocutory order, he would not be entitled to a certificate of appealability. "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 . . . includes showing that reasonable jurists could debate whether . . . the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further." Slack v. McDaniel, 529 U.S. 473, 483-84 (2000) (quotations omitted). No reasonable jurist could find that Scher's motion to find the Government in default should have been resolved differently. Scher asserted that the Government had failed to file a timely response to his petition when, under the briefing schedule set by this court, the Government's response still is not due. Accordingly, this court declines to issue a certificate of appealability.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, April 21, 2020
/s/ Susan Oki Mollway
Susan Oki Mollway
United States District Judge