MEMORANDUM OPINION
Emmet
G. Sullivan United States District Judge.
Pending
before the Court is Anthony Fareri's motion for a
certificate of appealability. For the reasons explained
below, a certificate of appealability is not required in view
of the claim the Mr. Fareri wants to appeal. However, given
the unusual posture of the case, and upon consideration of
the motion, the government's response, the relevant
caselaw, the entire history in this case, and for the reasons
explained below, the Court will grant the motion and issue a
certificate of appealability.
I.
Background
In
September 2010, Mr. Fareri pleaded guilty to mail fraud in
violation of 18 U.S.C. § 1341. In October 2011, he was
sentenced to 105 months incarceration followed by three years
supervised release and was ordered to pay restitution to his
victims. Thereafter, Mr. Fareri filed a direct appeal.
On
direct appeal, Mr. Fareri argued that his counsel provided
ineffective assistance in three ways: (1) his counsel told
Mr. Fareri that the Plea Agreement would allow him to
challenge (at the sentencing hearing) the amount of loss
underlying his Sentencing Guidelines calculation in order to
lower his Guidelines level and range; (2) his counsel failed
to obtain and present evidence at his sentencing of
additional payments made to victims that were not credited to
him in the Presentence Investigation (“PSI”)
Report or by the District Court (also argued in the Section
2255 motion); and (3) his counsel failed to adequately
investigate the amount of loss resulting from Mr.
Fareri's crime (also argued in the Section 2255 motion).
Br. for Appellant, USCA No. 11-3098, Doc. No. 139915
at 32-40. In its response to that appeal, the Court of
Appeals for the District of Columbia Circuit (“D.C.
Circuit”): (1) upheld this Court's application of
the vulnerable victim enhancement pursuant to Section 3A1.1
of the U.S. Sentencing Guidelines Manual; (2) remanded Mr.
Fareri's claim that he received ineffective assistance of
trial counsel to the District Court to consider in the first
instance; and (3) remanded for the District Court to correct
the specific amounts owed in restitution to each of Mr.
Fareri's victims so that they add up to a total the
Court's oral sentence. United States v. Fareri,
712 F.3d at 593, 596 (D.C. Cir. 2013).
Following
the remand, the Court ordered Mr. Fareri to set forth all of
his claims for relief regardless of whether they were
contemplated in the remand. See Docket for Civil
Action No. 09-54, Minute Order, Nov. 22, 2013. Thereafter,
Mr. Fareri filed a Motion to Vacate, Set Aside, or Correct
Sentence Under 28 U.S.C. § 2255. See §
2255 Motion, ECF No. 92. In that motion, Mr. Fareri asserted
that his counsel provided ineffective assistance in two
additional ways: (4) his counsel informed Mr. Fareri that any
restitution credit would offset the amount of loss; and (5)
his counsel “was either unaware of Mr. Harary's
continuing criminal conduct or despite knowledge of it
proceeded to convince Mr. Fareri to plead nonetheless.”
Id. at 5-6. Mr. Fareri also asserted that the
government committed a Brady violation. Id. at 6.
Following
a multi-day evidentiary hearing on his ineffective assistance
of counsel claim, this Court issued a Memorandum Opinion
addressing all of Mr. Fareri's claims as set forth in the
remand and his Section 2255 motion. The Court denied his
Section 2255 motion and adjusted the allocation of
restitution among the victims pursuant to the remand from the
D.C. Circuit. See generally Mem. Op., ECF No. 162.
Mr. Fareri then sought reconsideration of the Court's
Memorandum Opinion, which the Court granted in part and
denied in part. See generally Mem. Op., ECF No. 203.
Thereafter, Mr. Fareri filed a notice of appeal, see
ECF No. 205, and the D.C. Circuit referred to this Court the
determination of whether a certificate of appealability is
warranted, see ECF No. 207.
II.
Legal Standard for Issuance of a Certificate of
Appealability
A
certificate of appealability must be issued for an appellate
court to hear an appeal from a “final order in a
proceeding under section 2255.” 28 U.S.C. §
2253(c)(1)(B). The federal district court judge who rendered
the judgment for which appellate review is sought must either
issue the certificate of appealability or explain why it
should not be issued. Fed. R. App. P. 22(b)(1). A certificate
of appealability may issue “only if the petitioner has
made a substantial showing of the denial of a constitutional
right." 28 U.S.C. § 2253(c)(2). To make this
showing, the petitioner “need not show that he should
prevail on the merits.... 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.” United States v.
Mitchell, 216 F.3d 1126, 1130 (D.C. Cir. 2000) (quoting
Barefoot v. Estelle, 463 U.S. 880, 893 (1983)).
If the
court issues the certificate of appealability, it must
specify which issues satisfy the substantial showing
requirement. United States v. Mitchell, 216 F.3d
1126, 1130 (D.C. Cir. 2000). If a district court judge denies
a request for a certificate of appealability, a petitioner
may request one from the circuit court judge. Fed. R. App. P.
22(b)(1).
III.
Analysis
A.
A Certificate of Appealability is not required.
As a
preliminary matter, Mr. Fareri and the government agree that
a certificate of appealability is not required because Mr.
Fareri seeks to appeal an issue arising from his direct
appeal rather than an issue raised in his Section 2255
motion. See Def.'s Mot. for Certificate of
Appealability (“Def.'s Mot.”), ECF No. 214 at
1; Gov't's Resp. to Def.'s Mot. for a Certificate
of Appealability (“Gov't's Resp.”), ECF
No. 220 at 2. Mr. Fareri seeks appellate review of whether he
received ineffective assistance of counsel regarding the
consent order of forfeiture he entered into as part of his
plea agreement with the government, Def.'s Mot.”,
ECF No. 214 at 1, and he claims that he raised this issue in
his direct appeal, id. at 3.
The
Court agrees with Mr. Fareri and the government that Mr.
Fareri raised the issue for which he now seeks appellate
review in his direct appeal. In his appeal, Mr. Fareri
alleged that his counsel provided ineffective assistance
because he failed to adequately investigate the loss amount,
noting in a footnote that the loss amount impacted his
forfeiture amount. See Br. of Appellant at 36 n.14,
Reply Br. of Appellant at 22 n.13. However, Mr. Fareri
requests that the Court issue a certificate of appealability
“out of an abundance of caution” in case the D.C.
Circuit determines that one is required, Def.'s Mot., ECF
No. 214 at 3, and the government does not object,
Gov't's Resp., ECF ...