Memorandum and Order
I. Pending Matters
Pending before this court are the following motions:
(1) Petitioner's Motion for Certificate of Appealability Pursuant to28 U.S.C. § 2253(c)(1)(B) (Docket No. 16, filed November 14, 2003),with Memorandum of Law in Support of Motion for Certificate ofAppealability (COA) (Docket No. 17, filed November 14, 2003) (concerningappeal docketed as First Circuit No. 03-2442, which is referred to inFirst Circuit Order of the Court (Docket No. 14, entered October 24,2003); and
(2) Petitioner's Application To Proceed in Forma Pauperis (Docket No.18, filed December 1, 2003), with Petitioner's Affidavit To AccompanyMotion for Leave To Appeal in Forma Pauperis (Docket No. 19, filedDecember 1, 2003).
II. Relevant Procedural Background
On August 7, 1997, a federal grand jury returned a Fourth SupersedingIndictmentPage 2against petitioner, Samuel Patrick, in Criminal No. 96-10178-REK.Count 1 charged that petitioner was involved in racketeering in violationof 18 U.S.C. § 1962(c). Count 2 charged that he conspired with othersin racketeering activity in violation of 18 U.S.C. § 1962(d). Count 3charged that he conspired with others to distribute cocaine in violationof 21 U.S.C. § 846. Counts 21, 26, and 29 charged petitioner withdistribution of cocaine and possession of cocaine with intent todistribute on various dates in violation of 21 U.S.C. § 841(a)(1).Count 31 charged that he knowingly possessed a firearm after having beenconvicted of a felony. Count 32 charged that he knowingly possessedammunition after having been convicted of a felony. Count 42 charged thathe knowingly and intentionally committed and aided in the commission ofmurder for the purpose of maintaining his position in an enterpriseengaged in racketeering activity.
On August 5, 1998, a federal jury returned a verdict finding defendantnot guilty on Count 42 and guilty on Counts 1, 2, 3, 21, 26, and 29 ofthe Fourth Superseding Indictment.
On March 10, 1999, the district court sentenced petitioner to life inthe custody of the Bureau of Prisons. United States v. Patrick.41 F. Supp.2d 73 (D. Mass. 1999). Petitioner filed a Notice of Appeal. OnMay 3, 2001, the conviction and sentence were affirmed. See United Statesv. Patrick, 248 F.3d 11 (1st Cir. 2001).
On February 28, 2003, petitioner filed a petition pro se under28 U.S.C. § 2255, moving to vacate, set aside, or to correct hissentence (Docket No. 1). Petitioner also filed a motion for trialtranscripts pursuant to 28 U.S.C. § 753(f) (Docket No. 2) and amotion for leave to file an amended petition under 28 U.S.C. § 2255(Docket No. 3). In his 2255 motion, petitioner raised a number of claims:
(1) Petitioner's sentence is in violation of his Fifth AmendmentconstitutionalPage 3right to due process of law because the court lacked knowledge of theavailable range of sentencing discretion under applicable law. (DocketNo. 1, Attached Memo. at 4.)
(2) Petitioner's sentence and conviction for counts 1 and 2 are inviolation of his Fifth Amendment right to due process. (Id. at 9.)
(3) Petitioner's sentence and conviction for counts 1 and 2 are inviolation of his Sixth Amendment guarantee to notice and jury trial.(Id.)
(4) Petitioner's sentence and conviction for counts 1 and 2 is contraryto Apprendi v. New Jersey, 530 U.S. 466 (2002). (Docket No. 1, AttachedMemo. at 9.)
(5) Petitioner's sentence is in violation of the Eighth Amendment.(Id. at 13.)
(6) Petitioner's Fifth Amendment right to due process of law and a fairtrial was denied by the introduction of unintelligible tape recordings.(Id.)
(7) Petitioner's Fifth Amendment right was affected by the government'sfailure to produce exculpatory evidence in violation of Brady v.Maryland. 373 U.S. 83 (1963). (Docket No. 1, Attached Memo. at 15.)
(8) Count 3 of the indictment was "fatally defective and must bedismissed." (Id. at 17.)
(9) Petitioner received ineffective assistance of counsel. (Id. at 2.)On July 18, 2003, this court issued a Memorandum and Order denyingpetitioner's three motions of February 28, 2003 (Docket No. 7). The courtalso issued a Final Judgment dismissing with prejudice petitioner's 2255petition (Docket No. 8). On August 11, 2003, petitioner moved pro se toalter or amend this court's Order and Judgment (Docket No. 9). OnSeptember 30, 2003, this court issued a Final Order denyingPage 4petitioner's motion (Docket No. 11).
On October 15, 2003, petitioner filed a notice of appeal regarding thiscourt's judgments with respect to both petitioner's 2255 petition andpetitioner's August 11, 2003 motion to alter or amend (Docket No. 12). OnOctober 24, 2033, the Court of Appeals for the First Circuit issued anorder informing petitioner that his appeal, First Circuit No. 03-2442,"cannot go forward unless a certificate of appealability issues." (Orderof the Court, Docket No. 14.)
Petitioner now seeks a certificate of appealability so that he may infact "appeal the dismissal of the proceeding under 28 U.S.C. § 2255"(Docket Nos. 16 and 17). Petitioner has also moved for permission toproceed in forma pauperis (Docket Nos. 18 and 19).
III. Application To Proceed in Forma Pauperis
Under 28 U.S.C. § 1915(a)(1) (2000), this court has the discretionto authorize the commencement of an appeal without the prepayment of feesand costs to a prisoner who is financially unable to pay such fees andcosts.
Having examined the supporting documentation, I find that petitioner isentitled to proceed in forma pauperis if, but only if, he is entitled toproceed on appeal in the way he seeks to do.
IV. Certificate of Appealability
By statute, "[u]nless a circuit justice or judge issues a certificateof appealability,Page 5an appeal may not be taken to the court of appeals from . . . the finalorder in a proceeding under section 2255." 28 U.S.C. § 2253(c)(1)(2000). This provision has been interpreted to require a certificate ofappealability (COA) for the appeal of any matter that qualifies as a finalorder from a 2255 proceeding, not just for the appeal of the denial ofthe 2255 petition itself. See Pagan v. United States. 2003 WL 22999492(11th Cir. Dec. 23, 2003) (holding that an order denying bond, which thecourt found to be a final appealable order, required a COA for appeal);Eltayib v. United States. 294 F.3d 397, 399 (2d Cir. 2002) (requiring aCOA for the appeal of the denial of a Rule 4(a)(6) motion, which "doesnot involve the merits of the underlying [2255 petition]"). In the FirstCircuit, the local rules require that the certificate of appealability besought first from the district judge who denied the 2255 petition. FirstCircuit Local Rule 22.1.
Accordingly, petitioner seeks a certificate of appealability from thiscourt to proceed with an appeal of both this court's Final Judgment ofJuly 18, 2003 and this court's Final Order of September 30, 2003. In theFinal Judgment, this court dismissed the petitioner's 2255 proceeding. Inan accompanying Memorandum and Order, this court denied several ancillarymotions, including a motion for free trial transcripts. In the FinalOrder, this court denied petitioner's Rule 59(e)/60(b) motion to alter oramend the Final Judgment of July 18, 2003.
B. Appeal of Final Judgment of July 18, 2003
Petitioner offers this court two bases upon which to issue acertificate of appealability for an appeal of this court's Final Judgmentof July 18, 2003: (1) the ineffectivePage 6assistance of counsel claim that petitioner made in his 2255 petition,and (2) petitioner's motion for free trial transcripts, which the courtdenied in an accompanying Memorandum and Order.
2. Legal Standard
The standard by which I must evaluate petitioner's contentions derivesfrom section 2253. The statute dictates that "[a] certificate ofappealability may issue . . . only if the applicant has made a substantialshowing of the denial of a constitutional right." Id. § 2253(c)(2).
The way in which I apply this standard varies. The easy applicationarises when a district court has rejected the underlying 2255 petition onthe merits, and the petitioner moves for a certificate of appealabilityon the basis of one or more of the denied claims. Because the claims in a2255 petition must be constitutional claims, this situation clearlymanifests a "denial of a constitutional right." To make the required"substantial showing" of the denied constitutional right, petitioner mustdemonstrate that "reasonable jurists would find the district court'sassessment of the constitutional claim[or claims] debatable or wrong."Slack v. McDaniel, 529 U.S. 473, 484 (2000).
Matters become less apparent when no clear denial of a constitutionalright exists. Such a situation arises, for instance, (1) when a districtcourt has rejected the underlying 2255 petition on procedural grounds(not reaching the merits of the constitutional claims), or (2) when thepetitioner alleges as a basis for a certificate of appealability thedenial of an ancillary, non-constitutional motion, such as the denial ofthe motion for free transcripts that is alleged here. In the lattersituation, some district courts have refused to issue a COA simply forfailure to allege the denial of a constitutional right. See, e.g.,Stantini v. United States. 268 F. Supp.2d 168, 173-74Page 7(E.D.N.Y. 2003) (refusing to issue a COA for the denial of a motion todisqualify because petitioner's denied request "gives rise to noconstitutional infirmity of which this court is aware").
The Supreme Court, however, has made clear that section 2253,notwithstanding the express language about "a constitutional right," isnot to be interpreted to mean "only constitutional rulings may beappealed." Slack. 529 U.S. at 483. The standard must be adapted to appealsof non-constitutional rulings such as the two instances stated above.
The Supreme Court has espoused a test for the former instance (where adistrict court has rejected the underlying 2255 petition on proceduralgrounds).
When the district court denies a habeas petition on procedural grounds without reaching the prisoner's underlying constitutional claim, a COA should issue when the prisoner shows, 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.Id. at 484.
I am not aware, however, of a Supreme Court or First Circuit test forthe latter instance I suggested above (where the petitioner alleges as abasis for a COA the denial of an ancillary, non-constitutional motion, aspetitioner has done here). But the Court of Appeals for the Second Circuitmay provide useful guidance.
The Second Circuit has adapted the 2253 COA standard for a Federal Ruleof Appellate Procedure 4(a)(6) motion. Eltayib, 294 F.3d 397. A Rule4(a)(6) motion, which is a motion for reopening the time to file anappeal, "does not involve the merits of the underlying [2255 petition]"and hence is ancillary. Id. at 399. A Rule 4(a)(6) motion also does notinvolve aPage 8constitutional right.
To determine whether a COA should issue for the denial of a Rule4(a)(6) motion, the Second Circuit looked past the express language ofsection 2253. The court followed its recent precedent and took "asubstantial showing of the denial of a constitutional right" to mean "anappeal [should] go forward only if the appeal has a threshold quantum ofmerit." Kellogg v. Strack. 269 F.3d 100, 104 (2d Cir. 2001). The courtthen developed a test that evaluated all parts of the appeal for "athreshold quantum of merit."
The Second Circuit first determined that a showing that the districtcourt abused its discretion in denying the Rule 4(a)(6) motiondemonstrates "a threshold quantum of merit" for appeal. The analysis maynot stop there, however. Because the Rule 4(a)(6) motion is ancillary tothe merits of the underlying 2255 petition, a separate determination mustbe made as to the appealability of the denial of the underlyingpetition. This second determination requires no new test. The SupremeCourt, as 1 explained above, has established tests both for petitionsdenied on their merits and for petitions denied on procedural grounds.The Second Circuit incorporated these tests as alternative aspects of asecond prong to their test.
The court thus concluded that to receive a COA for the denial of aRule 4(a)(6) motion a petitioner must show:
(1) that jurists of reason would find it debatable whether the district court abused its discretion in denying the Rule 4(a)(6) motion; and (2)(a) in a case where a habeas petition was denied on the merits, that "jurists of reason would find the district court's assessment of the constitutional claims debatable or wrong" or (b) in a case where a habeas petition was denied on procedural grounds without reaching the underlying constitutional claims, that [sic] "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 thePage 9 district court was correct in its procedural ruling."
Eltayib. 294 F.3d at 400 (citation omitted).
I conclude that I should follow the Second Circuit's reasoning todevelop a test here. Petitioner here alleges as a basis for a COA thedenial of a motion for free transcripts. This motion, like a Rule 4(a)(6)motion, is ancillary to the merits of the underlying 2255 petition and isnon-constitutional. (See Memo. & Order of Sept. 30, 2003, Docket No.10, at 6 (noting no constitutional right to free transcripts exists in acivil proceeding).) And I am persuaded by the Second Circuit'sinterpretation of the language in section 2253 as requiring "a thresholdquantum of merit." I find that this reading both captures the meaning ofthe statute and abides the Supreme Court's directive that "a substantialshowing of a denial of a constitutional right" is not to be interpretedto limit COAs to constitutional rulings alone.
Like the Second Circuit's test, the first prong of the test here shouldreflect the standard for reviewing the denial of the motion. I find thata showing that the district court abused its discretion in denying themotion for free transcripts demonstrates a threshold quantum of merit forappeal. The second prong of the test here should be identical to thesecond prong of the Second Circuit's test. Because a motion for freetranscripts is ancillary to the denial of the underlying 2255 petition,the second prong addresses the separate determination as to theappealability of the denied petition.
Thus, I conclude that to receive a COA for the denial of a motion forfree transcripts, petitioner must show (1) that jurists of reason wouldfind it debatable whether the district court abused its discretion indenying the motion for free transcripts, and (2)(a) in a case where ahabeas petition was denied on the merits (as is true here), that juristsof reason wouldPage 10find the district court's assessment of the constitutional claimsdebatable or wrong or (b) in a case where a habeas petition was denied onprocedural grounds without reaching the underlying constitutional claims,that jurists of reason would find it debatable whether the petitionstates a valid claim of the denial of a constitutional right and thatjurists of reason would find it debatable whether the district court wascorrect in its procedural ruling.
3. Ineffective Assistance of Counsel
Petitioner relies first on a denied claim from his 2255 petition. Asarticulated above, petitioner must demonstrate that reasonable juristswould find the district court's assessment of the constitutional claim orclaims debatable or wrong. Petitioner asserts that "the district court'sdetermination that petitioner did receive effective assistance of counselis subject to debate among reasonable jurists," which accords with thestandard. (Pet.'s Memo. in Support, Docket No. 17, at 5.)
Petitioner does not, however, offer persuasive argument in support ofhis assertion. Petitioner devotes some space to contesting what healleges to be this court's argument that petitioner is "re-raising the[effective assistance of counsel] issue [that was] previously raised inhis direct appeal." (Id.) This court has never made such an argument.Rather, in the Memorandum and Order denying petitioner's 2255 petition, Istated, "Petitioner did not raise his ineffective assistance of counselclaim on direct appeal." (Memo. & Order of July 18, 2003, Docket No.7, at 8 (emphasis added).)
Petitioner also asserts the following:
Here, the record clearly discloses, in light of Apprendi, that trial counsel, [sic] at trial did not understand the essential elements ofPage 11 the crime with which Petitioner was charged. . . . Because, [sic] trial counsel did not consider drug type and quantity to be an element of the offense(s) Petitioner was charged with he was ineffective in cross-examination of Government witness on this matter.
(Pet.'s Memo. in Support, Docket No. 17, at 6 (citations omitted).)Petitioner cites numerous cases regarding ineffective assistance ofcounsel, presumably to demonstrate disagreement by jurists of reason.
This second assertion by petitioner fails for two reasons. First, a"petitioner may not raise new issues by means of a request for acertificate." Bowlen v. Scafati, 395 F.2d 692, 692 (1st Cir. 1968)(referring to a certificate of probable cause, which is the predecessorto the COA). In his denied 2255 petition, petitioner did not assertineffective assistance of counsel by trial counsel. Rather, petitionerpresented only a claim of ineffective assistance of counsel by appellatecounsel.1
Second, even if petitioner may raise this contention, reasonablejurists would not find this court's determination debatable. To proveineffective assistance of counsel, petitioner must show "(1) thatcounsel's representation fell below an objective standard ofreasonableness, and (2) that counsel's deficient performance prejudicedthe [petitioner]." Roe v. Flores-Ortega, 528 U.S. 470, 476-77 (2000).Petitioner argues that, given Apprendi, petitioner's trial counselPage 12did not adequately consider drug type and quantity of petitioner'sprevious drug crimes.
But the Court of Appeals for the First Circuit has rejectedpetitioner's Apprendi arguments, finding "the record establishes that nojury would have failed to find beyond a reasonable doubt that his(various) drug crimes here involved over 5.0 grams of cocaine base, thustriggering a maximum sentence of life imprisonment." Patrick, 248 F.3d at28. I conclude therefore that reasonable jurists could not find debatablea determination that counsel's performance, if in fact deficient, didnot prejudice petitioner. Accordingly, I rule that reasonable juristscould not find debatable this court's determination that petitionerreceived effective assistance of counsel. No COA should issue on thisasserted basis.
4. Motion for Free Trial Transcripts
Petitioner also contends that a COA should issue on the basis of thedenial of his motion for free trial transcripts. As stated earlier, apetitioner must seek a COA for any appealable final order in a 2255proceeding. This court denied the motion in question in a Memorandum andOrder that accompanied the Final Judgment, which denied the underlying2255 petition. I do not address here whether the motion for free trialtranscripts is in fact an appealable final order within the meaning ofsection 2253. Rather, I assume appealability and conclude that, in anyevent, a COA should not issue.
Petitioner's motion for free trial transcripts did not involve aconstitutional right. As I stated in my Memorandum and Order of September30, 2003, "[t]he United States Supreme Court has rejected the FifthAmendment due process-equal protection objection to a court's discretionto deny free transcripts under 28 U.S.C. § 753(f). United Statesv. MacCollom,Page 13426 U.S. 317, 323-28 (1976)." (Memo. & Order of Sept. 30, 2003,Docket No. 10, at 6.)
Accordingly, petitioner must satisfy the standard developed in PartIV.B.2 for the denial of a motion for free transcripts. To receive a COA,petitioner must show (1) that jurists of reason would find it debatablewhether the district court abused its discretion in denying the motion,and (2) in a case where a habeas petition was denied on the merits (as istrue here), that jurists of reason would find the district court'sassessment of the constitutional claims debatable or wrong.
Petitioner offers the following as grounds for a COA: The District Court's determination that Petitioner did not need Trial Transcripts for Section 2255 Motion is debatable among reasonable jurists. In Valverde v. Stinson. 224 F.3d 129 (2nd Cir. 2000) the Court held petitioner's allegations regarding confiscation of legal papers sufficient to establish exceptional circumstances, [sic] for justifying equitable tolling. Clearly, if an act of confiscation by corrections officer [sic] prevents a petitioner from filing a habeas corpus petition before expiration of one-year limitation period can establish exceptional circumstances warranting equitable tolling of limitations period, one can clearly agree that the denial of Trial Transcripts by the District Court and Petitioner's lawyer would be debatable among reasonable jurists. In sum, failure to provide the Petitioner with the Trial Transcripts, [sic] resulted in denial of access to the Court. As the government possessed these Transcripts, they are also necessary to aid the Petitioner in the preparation of his § 2255 petition. Denial of said Transcripts, [sic] works an invidious discrimination which cannot pass muster under the equal protection segment of the Fifth Amendment's Due Process Clause when the important substantive constitutional right of access to the courts is implicated.
The question here is adequate to deserve encouragement to proceed further in this matter.Page 14
(Pet.'s Memo. in Support, Docket No. 17, at 8.)
Petitioner fails to show that reasonable jurists would find itdebatable whether this court abused its discretion in denyingpetitioner's motion for free transcripts. Primarily, petitioner urges that"[t]he District Court's determination that Petitioner did not need TrialTranscripts" is debatable among reasonable jurists. (Id.) As I stated inmy Memorandum and Order of September 30, 2003, however, the determinationis not based on petitioner's need. "A court's decision [regarding freetranscripts] turns on whether `the transcript is needed for the court to"decide" a § 2255 motion — not for the petitioner to prepareit.' United States v. Horvath. 157 F.3d 131, 132 (2d Cir. 1998)." (Memo.& Order of Sept. 30, 2003, Docket No. 10, at 6 (emphasis altered).)
Petitioner appears to make other contentions, but those fail to presenta cogent argument.
Petitioner fails even to address the second prong of the test —that jurists of reason would find the district court's assessment of theconstitutional claims debatable or wrong. After reviewing the Memorandumand Order of July 18, 2003. I conclude that jurists of reason could notmake such a finding.
No COA should issue on the basis of this court's denial of petitioner'smotion for free trial transcripts.
C. Appeal of Final Order of September 30, 2003
Petitioner does not address, or offer a basis for, the issuance of aCOA for the appeal of this court's Final Order of September 30, 2003,which denied petitioner's RulePage 1559(e)/60(b) motion.
According to the Second Circuit, a certificate of appealability should issue in a case involving the denial of a Rule 60(b) motion "only if the petitioner shows that (1) jurists of reason would find it debatable whether the district court abused its discretion in denying the Rule 60(b) motion, and (2) jurists of reason would find it debatable whether the underlying habeas petition, in light of the grounds alleged to support the 60(b) motion, states a valid claim of the denial of a constitutional right."Eltayib, 294 F.3d at 399 (citation omitted). After reviewing theMemorandum and Order of September 30, 2003. I conclude that jurists ofreason could not find it debatable whether this court abused itsdiscretion in denying petitioner's motion. I rule therefore that a COAshould not issue for the appeal of this court's Final Order of September30, 2003.
For the foregoing reasons, it is ORDERED:
(1) Petitioner's Motion for Certificate of Appealability Pursuant to28 U.S.C. § 2253(c)(1)(B) (Docket No. 16) is DENIED.
(2) Petitioner's Application To Proceed in Forma Pauperis (Docket No.18) is DENIED in view of the denial of the certificate of appealability.
(3) The Clerk is directed to deliver forthwith to the Clerk of theCourt of Appeals for the First Circuit, in relation to First Circuit No.03-2442, a certified copy of this Memorandum and Order.
1. In fact, petitioner did not explicitly limit his claim ofineffective assistance of counsel to appellate counsel only. This courtlimited the claim to one against appellate counsel. I did so, however,because petitioner made no substantive assertions with regard to hisclaim of ineffective assistance of counsel. In his 2255 petition,petitioner only stated the six words "denial of Effective Assistance ofCounsel" in his "Summary of Argument" and then failed to mention theissue again. (Pet's 2255 Mot., Docket No. 1, at 2.) This court, in aneffort to read pro se pleadings liberally, read petitioner's appendix "inthe light most supportive of petitioner's allegations" and was able togive substance only to a claim of ineffective assistance of counselagainst appellate counsel. (Memo. & Order of July 18, 2003, DocketNo. 7, at 8.)Page 1