Criminal Procedure — certificates of appealability

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United States Court of Appeals For the Seventh Circuit

Criminal

Criminal Procedure — certificates of appealability

A defendant is not entitled to challenge the adverse portion of the district court’s decision on a sec. 2255 motion without a certificate of appealability.

“The government asserts that this court lacks jurisdiction to pursue the point because Fleming did not secure a certificate of appealability (CA) that would have permitted an appeal of the district court’s partial denial of his § 2255 petition. Fleming’s petition succeeded in part and failed in part: he obtained the relief he sought—new sentencing—with respect to the validity of his life sentence, but he did not persuade the court that there was anything wrong with the aggregation of the amounts of drugs he sold. Insofar as he is now appealing from the new sentence, he is essentially bringing a direct appeal for which he needs no CA. The question is whether he needs a CA for his challenge to the aggregation ruling, which is the part of the case that was rejected in his § 2255 proceeding. Although we have not had occasion to address this situation before, our sister circuits have done so and have unanimously concluded that a CA is needed for the part of the case that challenges the denial of collateral relief. See United States v. Willis, 649 F.3d 1248, 1253 (11th Cir. 2011); Wall v. United States, 619 F.3d 152, 154 (2d Cir. 2010); United States v. Haden, 475 F.3d 652, 664 (4th Cir. 2007); United States v. Green, 242 F.3d 384 (9th Cir. 2000); United States v. Johnson, 208 F.3d 227 (10th Cir. 2000); United States v. Reese, 204 F.3d 1117, 1117 (5th Cir. 1999). We see no reason to part company with them, and we thus conclude that Fleming is not entitled to challenge the adverse portion of the district court’s decision on his § 2255 motion without a CA. As of now, neither the district court nor this court has granted one, and so without further action, he is out of luck.”

Affirmed.

11-1404 U.S. v. Fleming

Appeal from the United States District Court for the Northern District of Indiana, Miller, J., Wood, J.