United States District Court, D. Nebraska
M. Gerrard United States District Judge
matter is before the Court on the defendant's motion for
leave to appeal in forma pauperis (filing 96) and motion for
a certificate of appealability (filing 94). Both motions will
proceeding under 28 U.S.C. § 2255 before a district
judge, a "final order shall be subject to review, on
appeal, by the court of appeals for the circuit in which the
proceeding is held." 28 U.S.C. § 2253;
see Oksanen v. United States, 362 F.2d 74, 77 (8th
Cir. 1966). This is consistent with the Court of Appeals'
jurisdiction over "appeals from all final decisions of
the district courts of the United States." 28 U.S.C.
order from which the defendant seeks to appeal (filing
91) was not a final order. A final decision is one that
ends the litigation on the merits and leaves nothing for the
court to do but execute the judgment. Gray v.
Swenson, 430 F.2d 9, 11 (8th Cir. 1970). "[T]he
rule as to finality requires that the judgment to be
appealable should be final not only as to all the parties,
but as to the whole subject-matter and as to all the causes
of action involved." Andrews v. United States,
373 U.S. 334, 340 (1963). In this case, so far, the
Court's orders have found that some of the
defendant's arguments lack merit, while others require an
evidentiary hearing. See filing 91. But the
defendant's motion asks the Court "to vacate, set
aside or correct" his sentence, see §
2255(a), and at this point, such relief has been neither
granted nor denied.
of that, "[t]he basic reason for the rule against
piecemeal interlocutory appeals in the federal system is
particularly apparent": until the defendant's
request for relief is fully resolved, "it is impossible
to know whether" either party "will be able to show
any colorable claim of prejudicial error."
Andrews, 373 U.S. at 340. Until the Court actually
rules on the defendant's motion, "none of the
parties to this controversy will have had a final
adjudication of his claims by the trial court in these §
2255 proceedings." Andrews, 373 U.S. at 340. In
short, the order from which the defendant seeks to appeal is
interlocutory, and no appeal will lie.
litigant seeking to appeal a judgment must either pay the
required filing fees, see Fed. R. App. P. 3(e), or proceed in
forma pauperis pursuant to 28 U.S.C. § 1915(a). But
§ 1915(a)(3) provides that "[a]n appeal may not be
taken in forma pauperis if the trial court certifies in
writing that it is not taken in good faith." An
appellant demonstrates good faith by seeking appellate review
of any issue that is not frivolous. Coppedge v. United
States, 369 U.S. 438, 445 (1962); Ellis v. United
States, 356 U.S. 674, 674 (1958). An indigent appellant
should be allowed to proceed in forma pauperis
unless the issues raised are so frivolous that the
appeal would be dismissed in the case of a non-indigent
litigant. Coppedge, 369 U.S. at 447; Ellis,
356 U.S. at 675.
appeal is frivolous where none of the legal points are
arguable on their merits-when the result is obvious or the
appellant's argument is wholly without merit.
See, Neitzke v. Williams, 490 U.S. 319, 325
(1989); Misischia v. St. John's Mercy Health
Sys., 457 F.3d 800, 806 (8th Cir. 2006). And while such
a finding should be made only in extreme cases, it is proper
when a party attempts to appeal from an order that is clearly
not appealable. See Cohen v. Curtis Publ'g Co.,
333 F.2d 974, 978-79 (8th Cir. 1964). The Court makes such a
a certificate of appealability is to be issued or denied by
the Court "when it enters a final order adverse
to the applicant." Rule 11(a) of the Rules Governing
Section 2255 Proceedings for the United States District
Courts (emphasis supplied); see §
2253(c)(1)(B); see also United States v. Lambros,
404 F.3d 1034, 1036 (8th Cir. 2005). The defendant's
request for a certificate of appealability will be denied
because it is premature. If the defendant ultimately was
prejudiced by any of the Court's rulings in the case to
this point, the defendant may seek to pursue his appellate
remedies upon entry of a final judgment. See
Oksanen, 362 F.2d at 77.
defendant's motion for a certificate of appealability
(filing 94) also asks the Court to revisit some of
the rulings made in the Court's November 7, 2016
Memorandum and Order. First, the defendant asks the Court to
reconsider its dismissal of his fourth claim, relating to
trial counsel's investigation of the defendant's
prior offenses. Filing 95 at 1-2. The Court
previously found that the defendant's second and fourth
claims were coextensive. Filing 91 at 7-8. The Court
sees no reason to revisit that conclusion, but to make sure
the record is clear: the Court views the defendant's
second claim, on which an evidentiary hearing is to be held,
as encompassing the defendant's claims that his trial
counsel failed to "investigate his predicate
offenses; find that they should not have been
counted separately; and object to separate
counting." See filing 95 at 2.
other ruling that the defendant wants to revisit is the
Court's finding that the defendant's challenge to the
conditions of his supervised release is barred by his waiver
of collateral attack. See filing 91 at 8-9. The
defendant now characterizes that argument as implying an
ineffective assistance of counsel claim, and he asks for
leave to amend his motion to articulate that theory.
Filing 95 at 2-4.
problem is that, in addition to being barred by the
defendant's waiver of collateral attack, the
defendant's argument is also time-barred. There remains a
substantial question in this case whether any of the
defendant's claims were timely filed. See,
filing 91 at 3-4; filing 71 at 4. But even
under the defendant's theory of equitable tolling, the
1-year statute of limitations ran in November 2014. See
filing 71 at 4. The defendant's challenge to the
conditions of his supervised release was not asserted until
June 2015. Filing 74 at 10-12. And that new claim
was not similar to his previous claims, nor did it arise out
of the same set of operative facts, so it does not relate
back to his original motion for statute of limitation
purposes. See United States v. Hernandez,
436 F.3d 851, 857-58 (8th Cir. 2006); see also Mayle v.
Felix, 545 U.S. 644, 656-64 (2005).
the Court sees no basis for an evidentiary hearing on the
defendant's claim with respect to the conditions of his
supervised release, and any amendment of his motion in that
respect would be futile.
defendant's motion for leave to appeal in forma ...