United States District Court, E.D. Michigan, Southern Division
ORDER DENYING A CERTIFICATE OF APPEALABILITY
VICTORIA A. ROBERTS, UNITED STATES DISTRICT JUDGE.
Hon. Victoria A. Roberts On December 27, 2017, this Court
issued an order denying Syed Ibrahim Hussain's
(“Hussain”) motion to vacate sentence brought
pursuant to 28 U.S.C. § 2255. (Doc. # 91). Hussain filed
a Notice of Appeal (Doc. # 93). The United States Court of
Appeals for the Sixth Circuit asks this Court to determine
whether to grant or deny a certificate of appealability.
reasons stated below, that certificate of appealability is
may not proceed on appeal unless he first obtains a
certificate of appealability. 28 U.S.C. § 2253(c)(1);
Fed. R. App. Proc. 22(b). Such a certificate may be issued
only upon a “substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2).
demonstrate this denial, the applicant is required to show
that reasonable jurists could debate whether, or agree that,
the petition or motion to vacate sentence “should have
been resolved in a different manner, or that the issues
presented were adequate to deserve encouragement to proceed
further.” Slack v. McDaniel, 529 U.S. 473,
483-84 (2000) (internal citations and quotations omitted).
When a district court rejects a petitioner's
constitutional claims on the merits, the petitioner must
demonstrate that reasonable jurists would find the district
court's assessment of the constitutional claims to be
debatable or wrong. Id.
December 2013, during plea negotiations, the Government sent
Hussain's counsel an email stating that if Hussain pled
guilty to the charged offenses, the Sentencing Guidelines
range would be 51 to 63 months with no mandatory minimum. The
email also stated that Hussain would be required to register
as a sex offender, and that if Hussain did not accept this
offer, the Government would charge him under a different
child pornography statute that carried a mandatory minimum
five years imprisonment.
October 2014, Hussain pled guilty to extortion by interstate
communication, 18 U.S.C. § 875(b), and possession of
child pornography, 18 U.S.C. § 2252A(a)(5)(B). He
entered into a written plea agreement for the two charged
offenses, but with a Sentencing Guidelines range of 63 to 78
months. In June 2015, Hussain filed a motion for a
determination of ineffective assistance of counsel in the
plea bargaining process, claiming that the December 2013
email was an offer, and that he was not told there was a
deadline to accept or reject the offer. During a July 2015
hearing on the motion, the Court ruled that the email was not
an offer because it did not contain material terms such as a
factual basis, an agreement on the charges or the Sentencing
Guideline range, an agreement to register as a sex offender,
or an agreement to plead guilty. The Court denied
Hussain's motion without prejudice.
sentencing, Hussain filed an amended § 2255 motion to
vacate his sentence. In his motion to vacate, Hussain argued
that his counsel was ineffective during the plea negotiation
process. Specifically, Hussain claimed that his counsel
“did not explain the process of plea negotiation”
to him, causing him to not realize that a “plea
offer” indicated in an email from the Government would
expire. However, as the Court noted in its order denying
Hussain's petition, that email was not a plea offer, and
Hussain cannot show “a reasonable probability [he]
would have accepted the earlier plea offer had [he] been
afforded effective assistance of counsel, ” or that
“the plea would have been entered without the
prosecution canceling it or the trial court refusing to
accept it.” Missouri v. Frye, 566 U.S. 134,
order denying Hussain's § 2255 motion, the Court
stated that under the “law of the case” doctrine,
“findings made at one point in the litigation become
the law of the case for subsequent stages of the same
litigation.” United States v. Moored, 38 F.3d
1419, 1421 (6th Cir. 1994). The Court noted that since it had
previously ruled that the December 2013 email was not a
formal plea offer, that ruling is the law of the case.
Therefore, Hussain could not prevail on his § 2255
motion because he could not show that the trial court would
have accepted the email as a plea, or that that the
prosecution would have stipulated that the email was a plea
offer, as required by Frye.
may not issue a certificate of appealability unless
“the [petitioner] has made a substantial showing of the
denial of a constitutional right.” Cooey v.
Coyle, 289 F.3d 882, 887 (6th Cir. 2002) (internal
citations and quotations omitted). To establish this,
“the mere allegation of a constitutional wrong, such as
deprivations of the right to effective counsel, is
insufficient; the petitioner must make a substantial showing
of such an error in order to present an appeal.”
United States v. Smith, 235 F.Supp.2d 418, 432 (E.D.
reasons stated by the Court in the order denying the §
2255 motion, the Court denies Hussain a certificate of
appealability. He fails to make a substantial showing ...