The opinion of the court was delivered by: Judge David A. Katz
MEMORANDUM OPINION AND ORDER
Before the Court is Petitioner Maurice Mason's ("Petitioner" or "Mason") Application for a Certificate of Appealability. (ECF No. 258.) Mason requests that this Court grant a certificate of appealability regarding certain issues addressed in this Court's ruling on his Motion to Prohibit the State of Ohio from Seeking the Death Penalty in a Penalty Phase Retrial. (ECF No. 255.) Respondent Warden Terry Tibbals ("Respondent") opposed the motion, and Mason replied to Respondent's opposition. (ECF Nos. 261 and 262, respectively.) Mason also filed a Motion for Pauper Status to allow him to appeal in forma pauperis. (ECF No. 257.) For the following reasons, the Court grants Petitioner's motions.
Mason was sentenced by a jury to death for aggravated murder, and the Marion County Court of Common Pleas entered judgment against him on July 15, 1994. Mason's state-court appeals failed, and this Court twice denied his habeas petitions. On October 7, 2008, the Sixth Circuit Court of Appeals reversed this Court and remanded the case. It ordered this Court to issue a conditional writ of habeas corpus vacating Mason's death sentence "unless the state of Ohio commences a new penalty-phase trial against him within 180 days from the date that the judgment in this matter becomes final." Mason v. Mitchell, 543 F.3d 766, 785 (6th Cir. 2008).
On October 30, 2008, Respondent timely filed a petition for rehearing en banc in the Sixth Circuit, which the court denied on February 19, 2009. The Sixth Circuit then issued its Mandate Order related to its ruling on February 27, 2009. (ECF No. 238.) On March 25, 2009, Respondent filed an untimely motion in the Sixth Circuit to recall and stay the mandate pending the filing of a petition for certiorari to the United States Supreme Court. The Sixth Circuit denied that motion on May 6, 2009.
On May 18, 2009, this Court issued an order stating:
[A] conditional writ of habeas corpus is hereby granted as to Masson's sentence of death. The Respondent shall either: (1) set aside Mason's death sentence; or (2) conduct another mitigation hearing. This shall be done within 180 days from May 6, 2009, the date upon which the Court finds the judgment in this matter became final. (ECF No. 242.)
Respondent filed a petition for writ of certiorari in the Supreme Court on July 20, 2009. He filed a motion to stay the conditional writ with this Court on July 22, 2009, which was granted on August 7, 2009. (ECF Nos. 243, 246, respectively.) The Supreme Court denied Mason's petition on November 16, 2009. This Court lifted the stay on December 1, 2009. (ECF No. 249.)
On December 18, 2009, the State scheduled Mason's new penalty phase hearing to begin on February 16, 2010, 170 days from May 6. On February 2, 2010, the Marion County Court of Common Pleas issued a Judgment Entry to Remove Defendant from Death Row and Order to Convey, which stated, "Based upon Defendant's [Motion for Defendant to be Removed from Death Row Housing and Motion to Transfer Defendant to Different Correctional Institution], and due to Defendant's death sentence being vacated, the Court hereby ORDERS that Defendant be removed from death row housing." (ECF No. 253-1.) Two days later, Mason moved the trial court to prohibit the new penalty phase hearing on the ground that the time to hold it had expired. After a hearing, the trial court denied Mason's motion on December 13, 2010. (ECF No. 252-1.)
Mason filed a motion on December 14, 2010, requesting that this Court prohibit the State of Ohio from commencing a new penalty phase trial against Mason, with the death penalty as an available sentence, because the State failed to adhere to the 180-day mandate set forth by the Sixth Circuit. (ECF No. 252.) This Court denied Mason's motion on the grounds that Mason did not object to the terms of the conditional writ in a timely motion pursuant to Federal Civil Rule 59(e), and that Respondent had in fact complied with the writ, concluding that the matter is now properly before the state trial court for a new mitigation hearing. (ECF No. 255.) Mason now asks this Court to grant him a certificate of appealability ("COA") regarding that order.
Section 2253 of The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") requires that a habeas petitioner obtain a COA prior to appealing the denial of habeas relief. The statute provides:
(c) (1) Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from--
(A) the final order in a habeas corpus proceeding in which the detention complained of arises out of process ...