United States District Court, N.D. Illinois, Eastern Division
L. WOOD, ONE OF THE ATTORNEYS FOR PETITIONER, NAPOLEON
PETITIONER'S MOTION FOR A RULE 58 JUDGMENT AND
REQUEST FOR CERTIFICATES OF APPEALABILITY
W. GETTLEMAN JUDGE
NAPOLEON FOSTER, by and through his attorney, LISA L. WOOD,
pursuant to 28 U.S.C. § 2253(c), and Rule 22(b) of the
Federal Rules of Appellate Procedure, respectfully requests
that this Court: (1) enter a judgment pursuant to Rule 58 of
the Federal Rules of Civil Procedure, and (2) enter an order
issuing certificates of appealability so that he may appeal
from the denial of the claims raised in his § 2255
support, Petitioner shows to the Court the following:
Procedural Background and Request for Entry of Judgment under
filed a petition pursuant to 28 U.S.C. § 2255,
challenging his convictions for armed bank robbery (18 U.S.C.
§§ 2 & 2113(a) and (d)), possession of a
firearm in furtherance of a crime of violence (18 U.S.C.
§ 924(c)(1)(A)), and possession of a firearm as a felon
(18 U.S.C. §§ 922(g) and 924(e)), as well as his
sentence of 284 months' imprisonment. On January 3, 2017,
this Court denied each of the issues raised in the petition,
except for Petitioner's challenge to his sentence under
the 18 U.S.C. § 924(e), the Armed Career Criminal Act.
This Court ordered the government to respond this argument,
and address whether Petitioner's 1982 conviction for
burglary still met the definition of a “crime of
violence” after Johnson v. United States, 135
S.Ct. 2551 (2015). The government conceded that the burglary
conviction no longer qualified as a crime of violence, and
that Petitioner was entitled to a resentencing hearing. On
October 19, 2017, a resentencing hearing was held, and this
Court sentenced defendant to a term of 181 months'
attempted to appeal the denial the issues raised in his
§ 2255 petition. Specifically, Petitioner attempted to
appeal from this Court's January 3, 2017 order. That
order, however, did not purport to dispose of all of
Petitioner's claims, as it requested the government
respond to the Johnson claim. Accordingly, it was
not a final order pursuant to 28 U.S.C. § 2253. In a
March 17, 2017 Order, the Seventh Circuit Court of Appeals
advised Petitioner that his appeal “appear[ed]
premature” because “[t]he district court ha[d]
not issued a Rule 58 judgment.” See Order,
attached as Exhibit A. After receiving this Order and
discussing the issue with counsel, Petitioner withdrew his
appeal, and proceeded to resentencing before this Court.
resentencing is now complete, Petitioner requests that this
Court enter a Rule 58 judgment that disposes of all of the
claims raised in his § 2255 petition. Petitioner also
requests that the judgment be set out in a separate document
as required by Rule 58(a). Such a judgment will qualify as a
final order, and will enable Petitioner to file a notice of
Request for Certificates of Appealability
appeal from a denial of a motion under 28 U.S.C. § 2255
cannot be taken as a matter of right. Instead, an appeal can
only be taken if a certificate of appealability is issued by
the district court that denied the motion, or, failing that,
a justice of the Court of Appeals. See, 28 U.S.C.
§ 2253(c); Fed. R. App. P. 22(b).
obtain a certificate of appealability, a petitioner must make
a substantial showing of the denial of a constitutional
claim. 28 U.S.C § 2252(c)(2). This is not an exacting
standard. Rather, the standard is met if: (1) reasonable
jurists could debate whether the petition should have been
resolved in a different manner; or (2) the issues presented
were adequate to deserve encouragement to proceed further.
Miller-El v. Cockrell, 537 U.S. 322, 336 (2003).
the “reasonable jurists” inquiry, the Supreme
Court concluded that a court should limit its examination to
a “threshold inquiry” into the underlying merits
of the applicant's claim. Id. Indeed, this Court
is “forbidden” from fully considering the factual
and legal bases adduced in support of the claims in
ascertaining whether the certificate should issue.
Id. Nor, does Petitioner need to establish that some
jurists would grant the petition, or that he would ultimately
prevail upon a full appeal; rather, he need only establish
that the claims are debatable. Id.
submits that the issues in his case are the sort that
reasonable jurists would debate as to whether they should
have been resolved differently, and are adequate to deserve
encouragement to proceed further. He therefore requests that
this Court issue certificates of appealability with respect
to the issues raised in his 2255 petition so that he may