Case: 1:17-cv-01288-SL Doc #: 3 Filed: 10/31/18 1 of 4. PageID #: 44

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
JAMES C. DIMORA,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.

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JUDGE SARA LIOI

CRIMINAL CASE NO. 1:10CR387-01

CIVIL CASE NO. 1:17CV1288

MOTION FOR CERTIFICATE OF APPEALABILITY
Petitioner James C. Dimora (“Dimora”) requests that the Court issue a certificate of appealability, pursuant to Rule 11 of the Rules Governing Section 2255 Proceedings for the United
States District Courts, with regard to his § 2255 claims filed on June 20, 2017. These § 2255
claims seek to vacate convictions based on the Supreme Court’s ruling in McDonnell v. United
States, 136 S. Ct. 2355 (2016), and the cumulative prejudice from the Court’s erroneous exclusion at trial of Mr. Dimora’s ethics reports.
The standard for issuance of a certificate of appealability is not high. The petitioner must
make a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c) (2). The
Supreme Court has held this standard is met whenever “reasonable jurists would find the district
court’s assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S.
473, 484 (2000).
We submit this standard is met here. Whether Mr. Dimora was improperly convicted
based on an incorrect statement of the law raises an important constitutional right. See, e.g.,
McDonnell, 136 S. Ct. at 2372 (finding conviction based on overbroad definition of official acts
raises “significant constitutional concerns”.) As the Supreme Court stated in McDonnell: “‘In1

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voking so shapeless a provision to condemn someone to prison” for up to 15 years raises the serious concern that the provision “does not comport with the Constitution’s guarantee of due process.’” Id. at 2373 (quoting Johnson v. United States, 135 S. Ct. 2551, 2560 (2015)).
And we submit that the Court’s 64-page decision rejecting his claims contains assessments that reasonable jurists would find, at the very least, debatable. Reasonable jurists may disagree regarding the meaning and application of the McDonnell decision, including with a trial
court’s assessment of the impact of an erroneous instruction on the jury verdict. See, e.g., United
States v. Fattah, 902 F.3d 197, 241 (3d Cir. 2018) (reversing conviction and rejecting district
court’s finding that erroneous official act jury instructions was harmless error) (“Although the
jury might not have concluded that Fattah’s efforts were themselves official acts and although the
jury might not have concluded that those efforts crossed the line into impermissible attempts ‘to
pressure or advise,’ we are unable to conclude that the jury necessarily did so.”) (emphasis in
original). Jurists on the 6th Circuit Court of Appeals have already disagreed regarding whether
this Court’s exclusion at trial of Mr. Dimora’s ethics report was grounds for reversal of his convictions. See United States v. Dimora, 750 F.3d 619, 632-33 (6th Cir. 2014) (Merritt, J., dissenting).
We respectfully submit that reasonable jurists might also disagree with the Court’s assessment regarding whether Mr. Dimora’s convictions should be vacated based, for example, on
some or all of the following debatable issues:
1. Whether the jury instructions regarding official act were erroneous based on McDonnell;
2. Whether in denying Dimora’s § 2255 motion the Court used the correct standard for
determining harmless error;

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3. Whether the Court correctly applied the harmless error standard to the record in this
case;
4. How the government’s repeated arguments to the jury that it should convict based on
conduct that is not official acts under McDonnell affects the harmless error analysis;
5. The counts that were affected, if the jury instructions were erroneous under McDonnell;
6. Whether there was prejudicial spillover to other counts;
7. Whether the Court’s erroneous exclusion of Dimora’s ethics reports lead to cumulative error which warrants a new trial.
We recognize that the record in this case is substantial, that there was evidence introduced of official acts performed by Mr. Dimora, as well as conduct that was not official acts,
which the Court has tried to distinguish. We also recognize that the parties argued extensively at
trial regarding the definition of official acts to the Court and the jury, with the government advancing a definition of official acts broader than McDonnell permits. In our view, this underscores the importance of the issue at trial and the appropriateness of further review, particularly
in light of the substantial sentence the Court imposed.
Wherefore, Petitioner Dimora respectfully requests that the Court issue a certificate of
appealability.
/s/ Philip S. Kushner________
Philip S. Kushner (0043858)
Michael R. Hamed (0069092)
Kushner & Hamed Co., LPA
1375 East Ninth Street, Ste 1930
Cleveland, OH 44114
216-696-6700/ 216-696-6772 (Fax)
pkushner@kushnerhamed.com
mhamed@kushnerhamed.com
Counsel for Petitioner James C. Dimora
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CERTIFICATE OF SERVICE
A copy of the foregoing Motion for Certificate of Appealability was filed electronically
this 31st day of October, 2018. Notice of this filing will be sent to all parties by operation of the
Court’s electronic filing system. Parties may access this filing through the Court’s system.
/s/ Philip S. Kushner
Counsel for Petitioner James C. Dimora

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