Harrington v. USA

Filing 38

ORDER denying 35 Motion to Amend/Correct Certificate of Appealability. Signed by Judge Stefan R. Underhill on 7/9/12. (Hungerford, A.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

STEPHEN HARRINGTON
No. 3:08cv1864 (SRU)
v.
UNITED STATES OF AMERICA

RULING ON MOTION FOR AMENDMENT OF CERTIFICATE OF APPEALABILITY
On December 3, 2008, the petitioner, Stephen Harrington, filed a motion to vacate his
sentence under 28 U.S.C. § 2255. On May 10, 2011, I denied Harrington’s motion. On June 7,
2011, Harrington, filed a motion for certificate of appealability of the following issues: (1) that
Harrington’s attorney’s failure to raise issues regarding the four Armed Career Criminal Act
predicate offenses at his sentencing rendered his representation ineffective; (2) that his unlawful
restraint conviction should not be included as a crime of violence; (3) that his drug sales
conviction does not qualify as a predicate offense because Harrington pleaded under the Alford
doctrine, and there is no evidence that can be used to determine the type of drug involved in the
offense; (4) that United States v. Begay gives the petitioner a direct right to challenge his
sentence because it is in excess of the maximum allowable by law; and (5) that the issues
involved in this case regarding predicate offenses and the manner of determining their validity
and effect was so novel in 2005 as to excuse the Harrington’s attorney’s failure to raise it either
there or on appeal. I granted that motion. Harrington now seeks to amend his certificate of
appealability to add the following issue: whether the residual clause of the Armed Career
Criminal Act, 18 U.S.C. § 924(e)(2)(B)(ii), is unconstitutionally vague.

When a district court has rejected a petitioner’s habeas petition on the merits, as was done
in this case, a certificate of appealability shall issue if the petitioner can “demonstrate that
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). Harrington did not raise the
constitutional vagueness issue in his habeas petition and, accordingly, that claim is waived. See
Rosenberger v. United States, 133 Fed. Appx. 799, 802, 2005 WL 1349526 (2d Cir. June 8,
2005) (citing United States v. Triestman, 178 F.3d 624, 633-34 (2d Cir. 1999); Strouse v.
Leonardo, 928 F.2d 548, 552 (2d Cir. 1991)). Harrington’s motion to amend the certificate of
appealability, doc. 35, is DENIED.
It is so ordered.
Dated at Bridgeport, Connecticut, this 9th day of July 2012.

/s/ Stefan R. Underhill
Stefan R. Underhill
United States District Judge

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