UNITED STATES I)ISTRICT C()URT
FOR THE DISTRICT OF COLUMBIA

UNITEI) STATES ()F AMERICA,
v.

HERBERT F. YoU
' ‘ NG’ Crim. No. 07-0153-4 (TFH)

Defendant.

MEM()RANDUM OPINION

The Court has received an Order from the United States Court of Appeals for the District
of Columbia Circuit ("D.C. Circuit") directing this Court to determine whether pro se defendant
Herbert F. Young is entitled to a Certificate of Appealability ("COA") [ECF No. 912]. Also
pending before the Court is de'fendant’s Application to Proceed ln Forina Pauperis [ECF No.
913]. /~\fter carefully considering the entire record in this case and for the reasons provided
below, the Court will decline to issue a C()A and will dismiss as moot the Application to
Proceed ln Forma Pauperis.

I.

Defendant was convicted in 2009 for conspiracy to distribute and possess with intent to
distribute one kilogram or more of heroin (Count One);l unlawful possession with intent to
distribute more than 50 grams of cocaine base (Count Seveii);z unlawful possession with intent to
distribute more than 100 grains of heroin (Count Nine);3 and using, carrying, or possessing a

firearm during and in relation to a drug trafficking crime (Count Ten)." Judgnieiit l~2 [ECF No.

l 21 U.S.C. §§ 846, S»<ll(a)(l), Slll(b)(l)(/~\)(iv) and S¢ll(b)(l)(/\)(iii).
2 21 U.S.C. §§ 84l(a)(l) and S¢ll(b)(l)(/\)(iii).

3 21 U.S.C. §§ 84l(a)(l) and Slll(b)(l)(l%)(i).

4 l8 U.S.C. § 924(0)(1)(%\).

561]. Defeiidant is currently serving concurrent sentences of 121 months on Counts One, Seven
aiid Nine, and a consecutive sentence of 60 months for Count Ten. Ia'. at 3. Defeiidaiit appealed
and the D.C. Circuit affirmed tliis Court’s judgment [ECF No. 786].

On June 18, 2013, defendant filed with this Court a motion seeking "Disqualilicatioii of
Justice, Judge, or l\/Iagistrate Pursuant to 28 USC 455 (a) and (d)( 1)" [ECF No. 820]. On June
30, 2014, the D.C. Circuit received from defendant a petition for writ of mandamus requesting,
inter alz`a, that the Clerk’s Office at the United States District Court for the District ofColumbia
file his l\/lotion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Setnence ("§ 2255
inotioii") [ECF No. 862-1]. On October 3, 2014, the D.C. Circuit denied the petition and ordered
that the petitition be referred to this Court for resolution as appropriate [ECF No. 862]. On
Oetober 15, 2014, this Court ordered nunc pro tunc that def`eiidant’s § 2255 motion be filed on
March 11, 2013 in Criiniiial Case No. 0'/'-00153-4 [ECF No. 863]. Oii October 17, 2014,
defendant filed a Writ of Stay Pursuant to 28 U.S.C. § 2251 [ECF No. 864] requesting to be
discharged froin custody while his § 2255 motion was pendiiig. On l\/larch 3, 2015, defendant
filed a Request to Enter Del"ault and Unconditional Discharge Thereupon [ECF No. 883]
requesting that a default judgment be entered in his favor regarding his § 2255 niotion.

Following a hearing on April 8, 2015, the Court entered an Order on April 9, 2015 [ECF
No. 886] denying defendant’s motion seeking "Disqualificatioii of J ustice, Judge, or Magistrate
Pursuaiit to 2$ USC 455 (a) and (d)(l)" [ECF No. 820]. Additionally, following a hearing on
June 2, 2015, the Court entered an Order on June 4, 2015 [ECF No. 898] denying defendant’s

§ 2255 motion [ECF No. 863] and denying as moot defendant’s Writ of Stay pursuant to 28

U.S.C.. § 2251 [ECF No. 864] and Request to Enter De_fault and Unconditional Discharge [ECF
No. 883].

Defendant filed a Notice of Appeal [ECF No. 903] challenging the Court’s denials of his
§ 2255 motion [ECF No. 863], Writ of Stay pursuant to 28 U.S.C. § 2251 [ECF No. 864], and
Request to Enter Default and Unconditional Discharge [ECF No. 883]. Defendant also indicated
in his Notice of Appeal that his motion for "Disqualification of Justice, Judge, or l\/lagistrate
Pursuant to 28 USC 455 (a) and (d)(l)" [ECF No. 820] and the D.C. Circuit’s October 3, 2014
Order [ECF No. 862] were not addressed by the Court.

Upon considering the Notice of Appeal, the D.C. Circuit observed that this Court had
neither granted nor denied a COA. Accordingly, the D.C. Circuit ordered that this Court
determine in the first instance whether defendant is entitled to a COA [ECF No. 912]. Shortly
thereafter, defendant filed with this Court an Application to Proceed In Forma Pauperis [_ECF
No. 913].

II.

A defendant must seek a COA to appeal a final order in a proceeding under section 2255.
rS`ee 28 U.S.C. § 2253(c)(l) ("Unless a circuitjustice or judge issues a certificate of appealability,
an appeal may not be taken to the court of appeals from . . . the final order in a proceeding under
section 2255."). Where, as here, "an appellant fails to file an express request for a COA . . . , the
notice of appeal constitutes such a request[.]" Unz`iecz' Slczles v. Mz`lchell, 216 F.3d 1126, 1 130
(D.C. Cir. 2000). The Court may issue a COA "only if the applicant has made a substantial

showing of the denial ofa constitutional right." 28 U.S.C. § 2253(0)(2). To make a substantial

showing of the denial of a constitutional right, the defendant must "show[] 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 ftlrther."’ Slack v. McDanz`el, 529 U.S. 473, 483-84 (2000) (quoting Barefooi v. Esl'elle,
463 U.S, 880, 893 (1983)). Additionally, where the Court denies a claim on procedural grounds
without reaching the underlying constitutional claim, the defendant must also show "that jurists
of reason would 'find it debatable whether the district court was correct in its procedural ruling."
Ia'. at 484.

Defendaitt’s Notice of Appeal is devoid of any bases or grounds for challenging the
Court’s denial of his § 2255 motion [ECF No. 863]. lndeed, upon review of the record and the
Court’s determinations regarding defendant’s arguments in support of his § 2255 motion, the
Court concludes that reasonable jurists could not debate either that "the issues presented were
‘adequate to deserve encouragement to proceed f`urther"’ or that, to the extent the Court denied
defendant’s arguments without reaching their merits, "the district court was correct in its
procedural ruling[s]." Slack, 529 U.S. at 483~84.

Defendant’s Notice of Appeal is likewise devoid of any bases or grounds for challenging
the Court’s denials of his Writ of Stay pursuant to 28 U,S.C. § 2251 [ECF No. 864] and Request
to Enter Default and Unconditional Discharge [ECF No. 883]. As noted above, the Court
determined that these inatters became moot following the denial of the § 2255 motion. Upon
review of the record, the Court concludes that reasonable jurists could not debate that the Court

was correct in its determinations that defendant’s Writ of Stay pursuant to 28 U.S.C. § 2251 and

Request to Enter Default and Unconditional Discharge were moot. See Slack, 529 U.S. at 483-
84.

To the extent defendant asserts in his Notice of Appeal that the Court failed to address his
motion for "Disqualification of J ustice, Judge, or l\/lagistrate Pursuant to 28 USC 455 (a) and
(d)(l)" [ECF No, 82()] and the D.C. Circuit’s October 3, 2014 Grder [ECF No. 862], his
assertions are belied by the record. As noted above, the Court denied the motion for
"Disqualification of .lustice, Judge, or l\/lagistrate Pursuant to 28 USC 455 (a) and (d)(l)" in its
April 9, 2015 Order. And shortly after the D.C. Circuit issued its October 3, 2014 Order, the
Court filed and eventually ruled upon defendant’s § 2255 motion. Upon review of the record,
the Court concludes that reasonable jurists could not debate whether the Court addressed
defendant’s motion for "Disqualification of Justice, Judge, or l\/lagistrate Pursuant to 28 USC
455 (a) and (d)(l)" [ECF No. 820] and the D.C. Circuit’s October 3, 2014 Order [ECF No. 862].
See Slczck, 529 U.S. at 483~84.

In sum, defendant has not "made a substantial showing of the denial of a constitutional

right.” 23 U.s.c. § 2253(¢)(2); see sza@k, 529 U.s. ar 483-84

III.
Because defendant has not made a substantial showing of the denial of a constitutional
right, the Court will decline to issue a COA. 28 U.S.C. § 2253(0)(2); see Slack, 529 U.S. at 483-
84. Because a COA is not warranted, the Court will dismiss as moot defendant’s Application to

Proceed In Forma Pauperis. An appropriate Order accompanies this memorandum opinion.

Aprii £Fi,:zom ~Z»Q `/:’ 2 
. Hogan

 

Thomas
Senior United States Distric Ju e

