UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

Joseph Whiting, D-20,

Petitioner,

v.

United States of America,

Respondent.

 /

Case No. 06-20465

Honorable Nancy G. Edmunds

ORDER GRANTING PETITIONER’S MOTION FOR CERTIFICATE OF

APPEALABILITY [2729]

This matter comes before the Court on Petitioner Joseph Whiting’s motion for

certificate of appealability under 28 U.S.C. § 2253. The Court granted in part and denied

in part Petitioner’s motion to vacate his sentence pursuant to 28 U.S.C. § 2255 on August

27, 2015. In the event Petitioner files a timely notice of appeal and a request for a

certificate of appealability pursuant to 28 U.S.C. § 2253 and Fed. R. App. P. 22(b), section

2253 requires a habeas petitioner to seek a certificate of appealability from this Court. 

The Court may issue a certificate of appealability if the petitioner has made a

substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). 

[T]he petitioner need not show that he should prevail on the merits. He has

already failed in that endeavor. Rather, he must demonstrate that the issues

are debatable among jurists of reason; that a court could resolve the issues

[in a different manner] or that the questions are “adequate to deserve

encouragement to proceed further.”

Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983); Hence v. Smith, 49 F.Supp.2d 547, 549

(E.D. Mich. 1999). 

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Petitioner seeks certificate of appealability on two of the issues raised previously

pursuant to 28 U.S.C. § 2255: ineffective assistance of counsel for failure to raise

Petitioner’s Brady claim on direct appeal and ineffective assistance of counsel for failure

to raise Petitioner’s Apprendi claim on direct appeal. 

As to the first issue, the Court previously denied Petitioner’s motion to vacate his

sentence pursuant to his Brady claim. This Court finds that Petitioner has made a

substantial showing with respect to this issue—that the issue is debatable among jurists

of reason; that a court could resolve the issue in a different manner; or that the question

is adequate to deserve encouragement to proceed further.

As to the second issue, in his amended § 2255 motion, Petitioner argued that the

sentence being served was in violation of Due Process pursuant to Apprendi v. New

Jersey, 530 U.S. 466 (2000). The Court granted Petitioner’s motion based on his Apprendi

claim and resentenced him on one count (Count 13). The Court finds that Petitioner has

made a substantial showing of the denial of a constitutional right with respect to whether

Petitioner’s Apprendi claim calls for resentencing only on Count 13. With respect to this

issue, Petitioner has shown that the issue is debatable among jurists of reason, that a court

could resolve the issue in a different manner, or that the question is adequate to deserve

encouragement to proceed further.

Being fully advised in the premises and having read the pleadings, the Court hereby

GRANTS Petitioner’s request for a certificate of appealability as to the two issues outlined

above. 

SO ORDERED.

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Case 2:06-cr-20465-NGE-MKM ECF No. 2733, PageID.19735 Filed 10/07/15 Page 2 of 3
S/Nancy G. Edmunds 

Nancy G. Edmunds

United States District Judge

Dated: October 7, 2015

I hereby certify that a copy of the foregoing document was served upon counsel of record

on October 7, 2015, by electronic and/or ordinary mail.

S/Carol J. Bethel 

Case Manager

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