United States District Court, S.D. Alabama, Southern Division
V. S. GRANADE SENIOR UNITED STATES DISTRICT JUDGE
matter is before the Court following the Eleventh Circuit
Court of Appeals' Order Remanding this action for the
limited purpose of determining whether a certificate of
appealability (“COA”) should issue. (Doc. 233).
For the reasons set forth herein below, Abston is DENIED a
certificate of appealability.
November 21, 2011, Petitioner pled guilty to-and was found
guilty of- conspiracy to possess, with the intent to
distribute, cocaine in violation of 21 U.S.C. § 846.
(Doc. 153). On July 11, 2012, Abston was sentenced to life
imprisonment on the conviction as well as ten years of
supervised release following his release from prison, and an
assessment of one hundred dollars. (Id.). On
September 16, 2013, the Eleventh Circuit Court of Appeals
affirmed Abston's conviction. (Doc. 176).
October 30, 2014, Abston filed a Motion to Vacate, Set Aside,
or Correct Sentence under 28 U.S.C. § 2255 asserting
that (1) his plea was not entered knowingly and voluntarily
due to ineffective assistance of counsel, (2) his 5th and 6th
Amendment Rights were violated by the court's enhancement
of his sentence based on his prior conviction, (3) his
sentence was unconstitutional, and (4) he had ineffective
assistance of counsel at sentencing. (Doc. 178). On April 2,
2015, United States Magistrate Judge Bert Milling, Jr.
entered a Report and Recommendation recommending that
Abston's petition be dismissed as all of his claims
lacked merit. (Doc. 195). Abston filed an Objection to the
Report and Recommendation (Doc. 198), but on June 8, 2015,
the Report and Recommendation was adopted as the opinion of
this Court (Doc. 204). The Order additionally denied Abston a
certificate of appealability, as he was not entitled to
appeal in forma pauperis. (Id.)
February 9, 2018, Abston filed a Motion to Re-open his §
2255 proceedings pursuant to Fed. R. Civ. Pro. 60(b)(2) and
(4). (Doc. 220). On February 21, 2018, this Court denied
Abston's motion to reopen. (Doc. 222). On March 23, 2018,
Abston filed a Motion to Amend, seeking a reconsideration of
this Court's Order denying his Rule 60(b) Motion (Doc.
223) which was endorsed denied on August 6, 2018 (Docket
entry dated 08/06/2018). Abston filed a notice of appeal on
October 15, 2018 (Doc. 226) and a motion to proceed in
forma pauperis on November 21, 2018 (Doc. 231) which was
denied (Doc. 232). Thereafter, the Appeals Court remanded
this action for the limited purposes of determining whether a
certificate of appealability should issue from this Court.
initial matter, Abston's Motion to Reopen was denied as a
second or successive petition over which this Court lacked
jurisdiction because Abston failed to file and obtain
permission from the appropriate appeals court in order for
this Court to consider it. (Doc. 222 at 4-5)(“ Despite
the fact that Abston classifies his motion as attacking the
integrity of the previous habeas proceedings, Abston is truly
attacking the court's previous resolution of the claim on
the merits. As such, Abston's motion is, in actuality, a
second or successive habeas petition and this Court does not
have jurisdiction to consider it.”); See also
Doc. 222 at ¶ 1. Accordingly, this Court need not rule
on a COA. See Hubbard v. Campbell, 379 F.3d 1245,
1247 (11th Cir. 2004). As to the other stated grounds for
denial of Abston's Rule 60(b) motion, this Court finds
that a COA should not issue.
a district court has rejected the constitutional claims on
the merits, the showing required to satisfy § 2253(c) is
straightforward: The petitioner must demonstrate that
reasonable jurists would find the district court's
assessment of the constitutional claims debatable or
wrong.” Slack v. McDaniel, 529 U.S. 473, 484
(2000). “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, (1) that jurists of
reason would find it debatable whether the petition states a
valid claim of the denial of a constitutional right
and (2) that jurists of reason
would find it debatable whether the district court was
correct in its procedural ruling.” (Id.)
(numerals and emphasis added). Therefore, determining
“whether a COA should issue where the petition was
dismissed on procedural grounds has two components, one
directed at the underlying constitutional claims and one
directed at the district court's procedural
holding.” Id. at 484-85.
“a substantial showing of the denial of a
constitutional right, ” 28 U.S.C. § 2253(c)(2),
Abston must demonstrate “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.” Miller-El v. Cockrell, 537
U.S. 322, 336 (2003) (citation and quotations omitted).
Although Abston need not demonstrate his appeal will succeed
to be entitled to a COA, he must “prove something more
than the absence of frivolity or the existence of mere good
faith.” Id. at 338.
review of Abston's original § 2255 Motion to Vacate
(Doc. 178) along with all pleadings filed thereafter do not
support the issuance of a COA in this instance. Rather, the
record reflects that Abston has repeatedly asserted the same
claims based on the same facts that this Court has repeatedly
found to be without merit. Specifically, Abston has
continuously alleged that this Court failed to consider the
evidence presented by Abston in support of his § 2255
petition and Rule 60(b) motion, despite this Court's
Orders that specifically address the evidence presented by
Abston and conclude his claims fail. (Docs. 195, 222).
Moreover, this Court's denial of Abston's Rule 60(b)
motion was threefold: (1) because it was a second or
successive petition over which this Court did not have
jurisdiction, (2) because it was untimely pursuant to Rule
60(b)(2), and (3) because notwithstanding the lack of
jurisdiction and the expiration of time, the claims failed on
the merits pursuant to both Rule 60(b)(2) and (b)(4). (Doc.
222). Abston has failed to establish that this Court's
rulings should have been decided in a different manner.
Rather, as this Court indicated in its denial of Abston's
motion to proceed in forma pauperis, Abston's
Notice of Appeal presents no new arguments which would give
merit to his appeal or suggest that the appeal was taken in
good faith. (Doc. 232). Instead, Abston's Notice of
Appeal again asserts that his initial § 2255 and each
decision thereafter, has been erroneous for the same reasons
that have already been determined insufficient. As such,
Abston has failed to assert sufficient facts to support that
this Court's findings were wrong or that it is debatable
that he suffered a denial of constitutional right or that his
claims should have been resolved in a different manner.
Accordingly, a COA should not issue.
reasons set forth herein above, Abston is DENIED a
certificate of appealability.