NOT RECOMMENDED FOR PUBLICATION
                                    File Name: 20a0527n.06

                                                Case No. 18-2382

                               UNITED STATES COURT OF APPEALS
                                    FOR THE SIXTH CIRCUIT
                                                                                                  FILED
                                                                                          Sep 10, 2020
MARVIN CHARLES GABRION, II,                                    )                      DEBORAH S. HUNT, Clerk
                                                               )
         Petitioner-Appellant,
                                                               )
                                                               )        ORDER GRANTING IN PART
v.
                                                               )        APPLICATION FOR
                                                               )        CERTIFICATE OF
UNITED STATES OF AMERICA,
                                                               )        APPEALABILITY
         Respondent-Appellee.                                  )
                                                               )
____________________________________/

Before: MERRITT, BATCHELDER, and MOORE, Circuit Judges.

         In 2002, following a jury trial, Marvin Gabrion was convicted and sentenced to death for

murdering Rachel Timmerman on federal property in violation of 18 U.S.C. §§ 7, 111. On direct

appeal, this court affirmed his conviction and death sentence. United States v. Gabrion, 

(6th Cir. 2013) (en banc). Gabrion filed a motion in the district court to vacate, set aside, or

correct a death sentence pursuant to 28 U.S.C. § 2255, raising 11 grounds for relief. The district

court dismissed the motion. Gabrion v. United States, No. 1:15-cv-447, 

(W.D.

Mich. Oct. 4, 2018). In a separate order issued the same day, the district court declined to issue a

certificate of appealability.1 Gabrion appealed, and the case is now pending before this court for

review of Gabrion’s application for a certificate of appealability raising 12 grounds for relief, and



1
 Rule 11 of the § 2255 Rules states that “[t]he district court must issue or deny a certificate of appealability when it
enters a final order adverse to the applicant.”
Case No. 18-2383, Gabrion v. United States


requests for discovery and an evidentiary hearing in the district court.               See 28 U.S.C.

§ 2253(c)(1)(B). The United States filed a response, and Gabrion filed a reply.

       A certificate of appealability may be granted “only if the applicant has made a

substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); see

Miller-El v. Cockrell, 

, 327 (2003). That standard is met when the movant

demonstrates “that jurists of reason could disagree with the district court’s resolution of his

constitutional claims or that jurists could conclude the issues presented are adequate to

deserve encouragement to proceed further.”

certificate of appealability for the following 12 claims, in addition

to requests for discovery and an evidentiary hearing in the district court:

       1. New guilt and penalty phase proceedings are required due to false and misleading
       testimony by Chrystal Roach, false testimony by other government witnesses, and
       false statements by prosecutors, all of which denied Gabrion a fair trial and penalty
       phase;
       2. The government withheld evidence in violation of Brady v. Maryland;
       3. Gabrion received ineffective assistance of counsel at the penalty phase based on
       numerous errors and omissions by trial counsel;
       4. Gabrion was incompetent to stand trial;
       5. Gabrion is presently incompetent;
       6. Trial counsel was ineffective at the guilt phase, in part, by failing to appropriately
       deal with competency issues, failing to obtain funding, failing to investigate the
       government’s case, and failing to retain investigative services;
       7. Gabrion was deprived of representation by conflict-free counsel where one of
       the attorneys who assisted and met with him represented a key government witness
       who testified against Gabrion;
       8. Trial counsel was ineffective post-trial where counsel failed to properly present
       the claim that the jury foreperson lied during voir dire;
       9. Gabrion was deprived of effective assistance of appellate counsel where counsel
       failed to raise a meritorious claim on appeal;
       10. The government failed to include necessary charges in the indictment;
       11. Executing Gabrion would violate the Eighth Amendment because he suffers
       from a severe mental illness; and

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Case No. 18-2383, Gabrion v. United States


       12. The cumulative effect of these errors deprived Gabrion of a constitutionally
       adequate trial and sentencing hearing .

       After careful review, we believe that reasonable jurists could debate the following four

claims from Gabrion’s application for a certificate of appealability: Claim 2 (whether the

government knew that the FBI’s hair analysis was false or misleading, but failed to disclose that

fact to defense counsel in violation of Brady, and the evidence is material to establishing federal

jurisdiction); Claim 3 (whether trial counsel was ineffective in its mitigation investigation and

presentation at the penalty phase); Claim 6 (whether trial counsel was ineffective at the guilt phase

by failing to obtain funding, failing to investigate the government’s case, and failing to retain

investigative services); and Claim 7 (whether trial counsel was ineffective because it deprived

Gabrion of representation by conflict-free counsel where one of the attorneys who assisted and

met with him represented a key government witness who testified against Gabrion).

       Gabrion’s requests for discovery and an evidentiary hearing relating to these claims

are not yet ripe for decision, and we will rule on those requests after briefing is completed.

       Accordingly, we grant a certificate of appealability as to these four claims (Claims

2, 3, 6, and 7). We deny a certificate of appealability as to all the remaining claims (1, 4,

5, 8, 9, 10, 11 and 12) because reasonable jurists could not debate the district court’s

resolution of these claims. The clerk is directed to issue a briefing schedule.

       It is so ordered.




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Case No. 18-2383, Gabrion v. United States


        ALICE M. BATCHELDER, Circuit Judge, dissenting. For the reasons stated by the

district court, I would deny the request for a certificate of appealability as to all claims.


                                                ENTERED BY ORDER OF THE COURT




                                                ____________________________________
                                                Deborah S. Hunt, Clerk




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