USA v. Scher

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
UNITED STATES OF AMERICA,
Plaintiff,
vs.
GREGORY SCHER,
Defendant.
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CRIM. NO. 15-000614 SOM
ORDER DECLINING TO ISSUE
CERTIFICATE OF APPEALABILITY
ORDER DECLINING TO ISSUE CERTIFICATE OF APPEALABILITY
On April 16, 2020, Defendant Gregory Scher filed a
notice of appeal that challenged this court’s denial of his
motion to find the Government in “default.” 	On April 20, the
Ninth Circuit issued an order stating that an appellate briefing
schedule would not be set until the district court determined
whether a certificate of appealability should issue. 	This court
declines to issue a certificate of appealability.
Scher’s appeal arises out of the 28 U.S.C. § 2255
petition he filed on February 5, 2020. 	ECF No. 250. 	The
Government’s opposition was due on March 11, 2020. 	However, on
February 14, 2020, the Government filed a motion that sought an
order finding that Scher had waived the attorney-client privilege
with respect to his § 2255 petition. 	ECF No. 252. 	On February
27, 2020, this court granted the Government’s motion. 	In the
same order, this court “extend[ed] the Government's response
deadline to the petition from March 11, 2020, to April 13, 2020.”
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ECF No. 254, PageID # 1806. 	This court subsequently granted an
additional extension. 	ECF No. 261.
Nevertheless, when the Government did not file a
response to Scher’s § 2255 petition by March 11, 2020, Scher
filed a motion asking this court to find the Government in
“default.” 	ECF No. 258, PageID # 1812. 	After this court denied
Scher’s motion, Scher appealed. 	ECF No. 262.
Scher is not entitled to a certificate of appealability
for two reasons. 	First, 28 U.S.C. § 2253, which governs appeals
in habeas corpus proceedings, only permits defendants to appeal a
final order rejecting their petition. 	See 28 U.S.C. § 2253(a)
(“In a habeas corpus proceeding or a proceeding under section
2255 before a district judge, the final order shall be subject to
[appellate] review[.]”); see also Ninth Circuit Local Rule 22-1
(“Appeals from the district court’s denial of relief in either a
28 U.S.C. § 2254 or a § 2255 proceeding are governed by the
procedures set forth in FRAP 4 and 22(b).”). 	This court has not
yet issued a final order deciding Scher’s § 2255 petition. 	The
briefing on that petition has not even closed. 	Scher’s notice of
appeal is therefore defective, because it challenges an
interlocutory order. 	See generally Nascimento v. Dummer, 508
F.3d 905, 908 (9th Cir. 2007) (holding that a notice of appeal
was defective because it “sought to appeal non-appealable
orders”); United States v. Garner, 663 F.2d 834, 837 (9th Cir.
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1981) (“Where the deficiency in a notice of appeal, by reason of
. . . reference to a nonappealable order, is clear to the
district court, it may disregard the purported notice of appeal
and proceed with the case, knowing that it has not been deprived
of jurisdiction.”).
Second, even if Scher had not challenged an
interlocutory order, he would not be entitled to a certificate of
appealability. 	“To obtain a COA under § 2253(c), a habeas
prisoner must make a substantial showing of the denial of a
constitutional right, a demonstration that . . . includes showing
that reasonable jurists could debate whether . . . the petition
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)
(quotations omitted). 	No reasonable jurist could find that
Scher’s motion to find the Government in default should have been
resolved differently. 	Scher asserted that the Government had
failed to file a timely response to his petition when, under the
briefing schedule set by this court, the Government’s response
still is not due. 	Accordingly, this court declines to issue a
certificate of appealability.
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IT IS SO ORDERED.
DATED: Honolulu, Hawaii, April 21, 2020
/s/ Susan Oki Mollway
Susan Oki Mollway
United States District Judge
United States v. Scher, Crim. No. 15-00614 SOM; ORDER DECLINING TO ISSUE
CERTIFICATE OF APPEALABILITY
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