United States District Court, District of Columbia
KINNARD GROSS, Defendant, Pro Se.
KINNARD GROSS, Defendant, represented by Cynthia Katkish, LAW
OFFICES OF CYNTHIA KATKISH.
Plaintiff, represented by Barry Wiegand, U.S. ATTORNEY'S
OFFICE, Emile Christopher Thompson, U.S. ATTORNEY'S
OFFICE & Mary Ann Snow, U.S. ATTORNEY'S OFFICE.
MEMORANDUM OPINION AND ORDER
L. FRIEDMAN, District Judge.
April 8, 2016, this Court vacated and re-entered its Judgment
of April 20, 2011 and its Opinion and Order of February 2,
2016, as part of an agreement between defendant and the
government to permit defendant to note a timely appeal. On
April 12, 2016, defendant filed two appeals - one from this
Court's Judgment and one from this Court's Opinion
and Order, originally entered on February 2, 2016 and
re-entered on April 8, 2016, which denied in part
defendant's motions to vacate, set aside, or correct his
sentence under 28 U.S.C. Â§ 2255 and to modify his sentence
under 18 U.S.C. Â§ 3582(c)(2). On April 27, 2016, the
court of appeals remanded defendant's appeal from this
Court's Opinion and Order for a determination of whether
a certificate of appealability is warranted in this case.
9, 2016, this Court ordered defendant to address: (1)
whether, in light of defendant's pending direct appeal
from the Court's original judgment in this case, the
appeal from the Court's decision denying in part
defendant's motion to vacate, set aside, or correct his
sentence is moot and it is unnecessary for the Court to
address the certificate of appealability issue; and (2) if
defendant does wish to proceed, his arguments as to what
specific issues meet the standard for a certificate of
appealability pursuant to 28 U.S.C. Â§ 2253. Court's
Minute Order of May 9, 2016.
claims that an appeal from this Court's Opinion and Order
as to the Section 2255 claim is not moot because
"nothing in the law precludes the Court from considering
[a] claim while a direct appeal is pending."
Defendant's Response to Remand and Motion for Certificate
of Appealability at 3 [Dkt. No. 72]. That, however, was not
the question asked by the Court. As the government noted in
its response, "defendant now has the unencumbered
ability to raise on direct appeal his core contention, which
is that his 120-month sentence is unlawful under the [Fair
Sentencing Act]. Effectually, this is the relief he claimed
in his original [Section] 2255 motion in April 2012."
Government's Response Concerning Certificate of
Appealability at 5-6 [Dkt. No. 75]. The Court agrees -
defendant will be able to present all of the same arguments
in his currently-pending direct appeal from this Court's
judgment that he could in an appeal from his Section 2255
motion. A second appeal regarding this same claim therefore
would be duplicative and unnecessary. Moreover,
defendant's claim that his 120-month sentence was illegal
under the Fair Sentencing Act does not appear to implicate
any constitutional rights. Thus, even if the appeal were not
duplicative, defendant has failed to satisfy the standard for
a certificate of appealability. See 28 U.S.C. Â§ 2253(c)(2)
("A certificate of appealability may issue under
paragraph (1) only if the applicant has made a substantial
showing of the denial of a constitutional right."). The
Court therefore will deny defendant's motion for a
certificate of appealability as to defendant's Section
2255 claim. The Court notes, however, that no certificate of
appealability is needed for defendant's separate claim to
modify his sentence pursuant to 18 U.S.C. Â§ 3582(c)(2).
foregoing reasons, it is hereby
that defendant's motion for a certificate of
appealability [Dkt. No. 73] is DENIED; and it is
ORDERED that the Clerk of this Court is directed promptly to
notify the Clerk of the court of appeals of this Memorandum
Opinion and Order and provide a copy to her.
 The Court granted defendant's request
for an evidentiary hearing on his remaining ineffective
assistance of counsel claim. Defendant alleged that counsel
failed to file an appeal despite his request to do so. But
that remaining claim became moot when the ...