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UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

UNITED STATES OF AMERICA, 

 Plaintiff, 

 Case No. 14-20479 

v. HON. GEORGE CARAM STEEH 

 

JOSEPH TUBBS, 

 

 Defendant. 

___________________________________/ 

ORDER DENYING CERTIFICATE OF APPEALABILITY 

 On August 2, 2016, the Court denied Joseph Tubbs motion to vacate, 

set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. On 

November 17, 2016, petitioner Joseph Tubbs filed a notice of appeal. For 

the reasons stated below, a certificate of appealability is DENIED. 

Federal Rule of Appellate Procedure 22 provides that an appeal may 

not proceed unless a certificate of appealability is issued under 28 U.S.C. § 

2253. Rule 11 of the Rules Governing Section 2255 Proceedings, which 

was amended as of December 1, 2009, requires that a district court issue 

or deny a certificate of appealability when it enters a final order. A 

certificate of appealability may issue “only if the applicant has made a 

substantial showing of the denial of a constitutional right.” 28 U.S.C. § 

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2253(c)(2). Courts must either issue a certificate of appealability indicating 

which issues satisfy the required showing or provide reasons why such a 

certificate should not issue. 28 U.S.C. § 2253(c)(3); Fed. R. App. P. 22(b); 

In re Certificates of Appealability, 106 F.3d 1306, 1307 (6th Cir. 1997). If a 

§ 2255 motion is denied on procedural grounds without reaching the 

underlying merits, a certificate of appealability should issue if the movant 

shows that jurists of reason would find it debatable whether the motion 

states a valid claim and that jurists of reason would find it debatable 

whether the district court was correct in its procedural ruling. See Slack v. 

McDaniel, 529 U.S. 473, 478 (2000). 

Tubbs alleges ineffective assistance of counsel, prosecutorial 

misconduct, and a disparity of sentence. Tubbs did not raise any of these 

issues on direct appeal, so they are procedurally defaulted and considered 

waived. Harris v. Reed, 489 U.S. 255, 258 (1989). Jurists of reason would 

not find it debatable whether the district court was correct in this procedural 

ruling. Further, jurists of reason would not find it debatable whether Tubbs’ 

motion states a valid claim. As addressed by the Court, in addition to the 

procedural error, Tubbs’ did “not allege facts sufficient to meet his burden” 

under Strickland v. Washington, 466 U.S. 668 (1984), (Doc. 33 at 5), “has 

not provided the court with any facts that indicate prosecutorial misconduct 

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beyond the conclusory allegations in his motion,” (Doc. 33 at 9), and did 

“not provide any examples where similarly situation defendants were 

sentenced to less time.” (Doc. 33 at 9-10). Thus, in addition to failing on 

procedural grounds, Tubbs’ motion fails to make a substantial showing of 

the denial of a constitutional right. 

Therefore, a certificate of appealability is DENIED. 

IT IS SO ORDERED. 

Dated: January 17, 2017 

 s/George Caram Steeh 

 GEORGE CARAM STEEH 

 UNITED STATES DISTRICT JUDGE 

CERTIFICATE OF SERVICE 

Copies of this Order were served upon attorneys of record on 

January 17, 2017, by electronic and/or ordinary mail and also 

on Joseph Tubbs #50187-039, FCI Hazelton, P.O. Box 5000, 

Bruceton Mills, WV 26525. 

s/Barbara Radke 

Deputy Clerk 

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