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Case: 15-10303

Document: 00513142700

Page: 1

Date Filed: 08/05/2015

NO. 15-10303
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
MOHAMMAD EL-MEZAIN
Defendant-Appellant
_________________________________________________
cons. w/15-10304
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
ABDULRAHMAN ODEH
Defendant-Appellant
_________________________________________________
cons. w/15-10306
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
GHASSAN ELASHI
Defendant-Appellant
_________________________________________________
cons. w/15-10307
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
SHUKRI BAKER
Defendant-Appellant
_________________________________________________
cons. w/15-10308
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
MUFID ABDULQADER
Defendant-Appellant
APPELLANTS APPLICATION FOR
CERTIFICATE OF APPEALABILITY

Appellants Application for Certificate of Appealability - Page 1

Case: 15-10303

Document: 00513142700

Page: 2

Date Filed: 08/05/2015

TO THE HONORABLE JUDGES OF SAID COURT:


COMES NOW MOHAMMAD EL-MEZAIN, ABDULRAHMAN ODEH,
GHASSAN ELASHI, SHUKRI BAKER, MUFID ABDULQADER, Appellants,
and submits this Application for Certificate of Appealability and would show the
Court the following:
I.
Appellants have filed a Notice of Appeal from the denial of their Motions to
Vacate Sentence under 28 U.S.C. 2255. Based on all of the reasons in the Brief in
Support of this Application, Appellants request that the Court issue a certificate of
appealability.
II.
This application relates to the claims of ineffective assistance of counsel
raised in the 2255 Petitions.
III.
Certificate of Appealability
Standard for Issuance
Appellants must obtain a Certificate of Appealability in order to appeal the
denial of their 2255 Petition. F. R. App. P. 22. The certificate of appealability
should be granted if the Appellants have made a substantial showing of the denial
of a constitutional right.

The certificate should issue if an Appellant has

"demonstrate[d] that his petition involves issues which are debatable among jurists
Appellants Application for Certificate of Appealability - Page 2

Case: 15-10303

Document: 00513142700

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Date Filed: 08/05/2015

or that the issues are adequate to deserve encouragement to proceed further."


Miller-El v. Cockrell, 537 U.S. 322, 330 (2003); Coppage v. McKune, 534 F.3d
1279, 1281 (10th Cir. 2008).
Under 28 U.S.C. 2253 and Barefoot v. Estelle, 463 U.S. 880, 893-894
(1983), a certificate should issue when there is a showing that reasonable jurists
could debate whether (or, for that matter agree that) the petition could have been
resolved in a different manner or that the issues were 'adequate to deserve
encouragement to proceed further." Slack v. McDaniel, 529 U.S. 473, 484 (2000)
(quoting Barefoot, supra at 893 and n. 4).
The only question before a court is whether it is debatable that a
constitutional violation has occurred, for "a COA determination is a separate
proceeding, one distinct from the underlying merits," Miller-El, 537 U.S. at 340348. See Graves v. Cockrell, 351 F.3d 143, 150 (5th Cir. 2003), cert. denied, 541
U.S. 1057 (2004) ("Any doubt regarding whether to grant a COA is resolved in
favor of the petitioner"); Dickson v. Quarterman, 453 F.3d 643, 647 (5th Cir.
2006) (granting COA after quoting from Miller-El, 537 U.S. at 342): 'The question
is the debatability of the underlying constitutional claim, not the resolution of that
debate.") See, Foster v. Johnson, 293 F.3d 766 (5th Cir. 2002) (granting certificate
of appealability on ineffective assistance ground); United States v. Reed, 719 F.3d
369 (5th Cir. 2013) (granting certificate of appealability and reversing based on
ineffective assistance of counsel).
Appellants Application for Certificate of Appealability - Page 3

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Date Filed: 08/05/2015

In Stevens v. Epps, 618 F.3d 489 (5th Cir. 2010), the court stated that a
habeas petitioners claim can be debatable even though every jurist of reason
might agree, after the certificate of appealability has been granted and the case has
received full consideration, that the petitioner will not prevail. The court further
stated that the court cannot deny a certificate of appealability because it believes
the habeas petitioner ultimately will not prevail on the merits of his claims. See
also, United States v. Batamula, 788 F.3d 166 (5th Cir. 2015) (granting certificate
of appealability on ineffective assistance claim); United States v. McGrew, 397
Fed. Appx. 87, 95 (5th Cir. 2010) (not designated for publication) (granting
certificate of appealability and remanding for evidentiary hearing); United States v.
Reed, 719 F.3d 369 (5th Cir. 2013) (granting certificate on ineffective assistance of
counsel claim and remanding for an evidentiary hearing).
IV.
Based on the significant issues raised, a certificate of appealability should
issue.
WHEREFORE, PREMISES CONSIDERED, Appellants pray that the Court
issue a Certificate of Appealability.

Appellants Application for Certificate of Appealability - Page 4

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Document: 00513142700

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Date Filed: 08/05/2015

Respectfully submitted,
/s/ Gary A. Udashen
GARY A. UDASHEN
Bar Card No. 20369590
SORRELS, UDASHEN & ANTON
2311 Cedar Springs Road
Suite 250
Dallas, Texas 75201
(214) 468-8100
(214) 468-8104 fax
Attorney for Appellants

CERTIFICATE OF SERVICE
I hereby certify that on the 5th day of August, 2015, a true and correct copy
of the above and foregoing Appellants Application for Certificate of Appealability
was electronically served on Joseph Palmer, U. S. Department of Justice, 950
Pennsylvania Avenue, N.W., Suite 6500, Washington, D.C. 20530, to
joseph.palmer@usdoj.gov.

/s/ Gary A. Udashen


GARY A. UDASHEN

Appellants Application for Certificate of Appealability - Page 5