Dealing with the issue for the first time, the 7th Circuit Court of Appeals has held that a certificate of appealability is needed for the part of a case that challenges the denial of collateral relief.
In United States of America v. Kimani Lanier Fleming, No. 11-1404, Kimani Fleming appealed his revised 480-month sentence and the District Court’s decision to use aggregation of individual drug quantities over a period of time to conclude whether Fleming possessed more than 50 grams of crack. Fleming was originally sentenced to life in prison for his various drug and firearms convictions, but his sentence was revised after Fleming filed a petition under 18 U.S.C. Section 2255 asserting his counsel had been constitutionally ineffective. The government then admitted it had failed to file its notice of enhanced penalty within the permitted time frame, causing the District Court to set aside the mandatory life sentence.
Fleming then appealed his revised sentence and challenged his conviction of possession of cocaine base with intent to distribute. He has no certificate of appealability on the conviction issue.
“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,” wrote Judge Diane Wood. “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.”
The judges declined to grant him a CA based on alleged ineffectiveness of counsel and affirmed his sentence. They found the District Court reasonably relied in part on the testimony of a witness indicating the amount of cocaine powder Fleming was moving.