United States of America v. Hester et al
Filing
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MEMORANDUM OPINION AND ORDER: For the reasons set forth, the Court denies Petitioner Joe Hesters motion to vacate, set aside, or correct sentence by person in federal custody pursuant to 28 U.S.C. § 2255 1 , denies as moot his motion to req uest order or standing order for unimpeded access to thecourt 8 , declines to certify any issue for appeal, and directs the Clerk to enter judgment in favor of the United States. Signed by the Honorable Robert M. Dow, Jr on 7/11/2014. Mailed notice(tbk, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
UNITED STATES OF AMERICA
v.
JOE HESTER
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)
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)
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CIVIL CASE NO. 14 CV 2763
(related Criminal CASE NO. 08 CR 848)
Judge Robert M. Dow, Jr.
MEMORANDUM OPINION AND ORDER
This matter is before the Court on Petitioner Joe Hester’s motion to vacate, set aside, or
correct sentence by person in federal custody pursuant to 28 U.S.C. § 2255 [1] and motion to
request “order” or “standing order” for unimpeded access to the court [8]. For the reasons stated
below, the Court denies Petitioner Hester’s motion to vacate, set aside, or correct sentence [1]
and denies as moot Petition’s motion to request “order” or “standing order” for unimpeded
access to the court [8].1
I.
Background
On October 21, 2008, Hester was arrested on a criminal complaint charging him with a
violation of 18 U.S.C. §922(g). After the Government was granted several extensions of time to
return an indictment, on February 17, 2009, the grand jury returned a three-count indictment
charging Hester with one count of being a felon in possession of a firearm in violation of 18
U.S.C. § 922(g)(1) and two counts of possession of narcotics with intent to distribute [24].2 On
1
Hester requested that the Court issue an order granting him “unimpeded access” to the courts. The
Court denies Hester’s motion as moot. No further briefing is necessary in this case. Furthermore,
although Hester’s reply brief was approximately one month late, the Court has reviewed the brief and
considered his arguments in ruling on his motion to vacate, set aside, or correct sentence. Therefore,
Hester has received all the access to the courts to which he is entitled.
2
On March 25, 2009, Hester’s attorney moved to withdraw [41], which the Court granted on March 26,
2009. A federal defender panel attorney was appointed as standby counsel on April 8, 2009. On May 15,
2009, Judge Manning, to whom this case previously was assigned, granted Hester’s request to proceed
December 9, 2009, a grand jury returned a superseding indictment based on substantially the
same charges [89]. After a lengthy pre-trial process and considerable motion practice, a jury trial
commenced on October 24, 2011. On October 27, 2011, the jury returned a verdict of guilty as
to all three counts. Defendant then filed a motion for judgment notwithstanding the verdict and a
motion to dismiss; the Court denied both motions [241].
While the parties prepared for
sentencing, Defendant filed another post-trial motion, asserting many of the same arguments
previously raised and rejected as well as a few new contentions, which the Court also denied.
The initial presentence investigation report (“PSR”) determined that Hester’s total
offense level was 37. The offense level was based on Hester’s status as a career offender and
used the offense statutory maximum of life for Count Two, which, pursuant to USSG §
4B1.1(b)(A), resulted in an overall total offense level of 37. The PSR based this calculation on a
statutory maximum of life imprisonment for Count Two of the super superseding indictment,
which charged Hester with the possession with intent to distribute 5 or more grams of crack
cocaine on August 1, 2007, pursuant to 21 U.S.C. § 841(a)(1). Hester was subject to enhanced
penalties for this offense as a result of an Information Stating Previous Conviction to Be Relied
Upon in Seeking Increased Punishment pursuant to 21 U.S.C. § 851(a) filed on December 2,
2009.
As of the date that this offense was committed, the enhanced penalty pursuant to 21
U.S.C. § 841(b)(1)(B)(iii) consisted of a 10-year mandatory minimum and a statutory maximum
of life. The current enhanced penalty, as a result of the Fair Sentencing Act, for 5 or more grams
of crack cocaine but less than 28 grams was a statutory maximum of thirty years. Cf. 21 U.S.C. §
841(b)(1)(B)(iii) and (C) (2010); 21 U.S.C. § 841(b)(1)(B)(iii) and (C)(2011).
pro se. He represented himself, with the assistance of standby counsel, through post-trial motions and
sentencing.
2
The PSR’s initial position on this issue was consistent with the prevailing Seventh Circuit
case law that the Fair Sentencing Act was not retroactive and applied only to offenses committed
after August 3, 2010. United States v. Fisher, 635 F.3d 336 (7th Cir. 2011). At the time, the
Attorney General took the position that the Fair Sentencing Act applies to all criminal
prosecutions in which sentence was imposed on or after August 3, 2010, the day the President
signed the bill. United States v. Holcomb, 657 F.3d 445, 446 (7th Cir. 2011). Pursuant to the
Attorney General’s position, the applicable statutory maximum was thirty years pursuant to 21
U.S.C. § 841(b)(1)(C), and thus the total offense level was 34, rather than 37, pursuant to USSG
§ 4B1.1(b)(2).
Because the positions of the Seventh Circuit and the Attorney General were not
consistent on this issue, Hester’s sentencing was postponed during the pendency of two appeals
concerning the retroactivity of the Fair Sentencing Act before the Supreme Court. On June 21,
2012, the Supreme Court decided Dorsey v. United States, 132 S. Ct. 2321 (2012), which
resolved a split among the circuits and found that the Fair Sentencing Act’s lower mandatory
minimums to apply to the post-Act sentencing of pre-Act offenders. After the Dorsey decision,
Hester’s sentencing was rescheduled and the probation department was directed to file an
updated PSR reflecting the applicability of the Fair Sentencing Act to Hester’s advisory
guidelines calculations.
On August 1, 2012, the probation department prepared an updated PSR in conformity
with Dorsey v. United States, 132 S. Ct. 2321 (2012). The report reflected that Hester was
subject to a maximum term of imprisonment of ten years on Count One, pursuant to 18 U.S.C. §
922(g)(1). It further reflected that Hester was subject to a maximum term of imprisonment of
thirty years for both Counts Two and Three, pursuant to 21 U.S.C. §§ 841(a)(1)(C) and 851. The
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statutory maximum for Counts Two and Three was increased as a result of an Information
Stating Previous Conviction to Be Relied Upon in Seeking Increased Punishment pursuant to 21
U.S.C. § 851(a). Hester was not subject to any statutory mandatory minimum on any count of
conviction against him. 21 U.S.C. §§ 841(a)(1)(C) and 851.
Hester’s total advisory guidelines offense level was determined to be Level 34. Pursuant
to USSG § 2K2.1(a)(2), the base offense level for Count One was 24, since Hester had at least
two felony convictions of either a crime of violence or a controlled substance offense. This was
increased an additional four levels pursuant to USSG § 2K2.1(b)(6) since Hester possessed the
firearms in connection with another felony offense, namely, the narcotics offense charged in
Count Two of the superseding indictment. The base offense level for Counts Two and Three
was 22 pursuant to USSG §§ 2D1.1(a)(5) and (c)(9). This was increased an additional two levels
pursuant to USSG § 2D1.1(b)(1) as a result of the possession of the firearms charged in Count
One of the superseding indictment. Pursuant to USSG § 3D1.2(c), Hester’s combined offense
level was 28. Because Hester was a career offender, pursuant to USSG § 4B1.1(b)(A), and
because Counts Two and Three carried a 30-year maximum penalty pursuant to 21 U.S.C. §§
841(a)(1)(C) and 851 and the Supreme Court’s decision in Dorsey, Hester’s total offense level
was 34.
Hester had 12 criminal history points and a criminal history category of V, although
because he was a career offender pursuant to USSG § 4B1.1(b), his criminal history category
became VI. Based on a total offense level of 34 and a criminal history category of VI, Hester’s
total advisory guidelines range was 262-327 months.
On December 4, 2012, Hester was sentenced to a 120-month term of imprisonment on
Count 1 of the superseding indictment, and a 275-month term of imprisonment on Counts 2 and
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3, to be served concurrently, followed by concurrent terms of supervised release of three, six,
and eight years.
Hester appealed his conviction on December 4, 2012. On January 23, 2014, the Seventh
Circuit affirmed his conviction. United States v. Hester, 552 Fed. Appx. 580, 2014 WL 243178
(7th Cir. January 23, 2014). The Seventh Circuit rejected each of Hester’s contentions on
appeal, finding that the Court correctly concluded that there was probable cause for the warrant
to search Hester’s apartment and that Hester did not make substantial preliminary showing
required to obtain a Franks hearing. The Seventh Circuit further found that the Court correctly
declined to compel production of the CI’s identity. The Seventh Circuit also found that Hester’s
Speedy Trial rights were not violated, his Sixth Amendment rights were not violated by the
failure of attorney William Laws to file an appearance form, and he did not lack representation
during critical stages of the proceedings. The Seventh Circuit also found that this Court correctly
refused to dismiss the gun charge against Hester on the basis of Buchmeier v. United States, 581
F.3d 561, 567 (7th Cir. 2009). The Seventh Circuit further found that the evidence at trial
against Hester was “largely unrebutted and overwhelming” and, consequently, a rational trier of
fact could find him guilty. Finally, the Seventh Circuit found that since Hester was not subject to
any statutory minimum sentence, his sentence could not have violated Alleyne v. United States,
133 S.Ct. 2151 (2013).
II.
Analysis
Hester filed the current motion on April 17, 2014. In the motion itself, he raises five
grounds, with an additional two grounds raised in attachments to the motion. Relief under §
2255 is an uncommon remedy because it requires the district court “to reopen the criminal
process to a person who already has had an opportunity for full process.” McMahan v. United
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States of America, 2009 WL 509869, at *1 (N.D. Ill. Mar. 2, 2009). A § 2255 motion to vacate
to set aside or correct a sentence will be granted only if the petitioner establishes “that the district
court sentenced [her] in violation of the Constitution or laws of the United States or that the
sentence was in excess of the maximum authorized by law or is otherwise subject to collateral
attack.” Hays v. United States, 397 F.3d 564, 566-67 (7th Cir. 2005)). If a § 2255 petitioner
does not raise a claim in her direct appeal, that claim is barred from the Court’s collateral review
unless the petitioner can demonstrate cause for the procedural default and actual prejudice from
the failure to appeal (see Fuller v. United States, 398 F.3d 644, 648 (7th Cir. 2005)), that
enforcing the procedural default would lead to a ‘fundamental miscarriage of justice” (Anderson
v. Benik, 471 F.3d 811, 815 (7th Cir. 2006), or that there has been a change of circumstances
involving facts or law (Varela v. United States, 481 F.3d 932, 935 (7th Cir. 2007)).
A.
Fourth Amendment Claim
Hester’s first ground for relief—that his Fourth Amendment rights were violated when
his home was searched—was raised unsuccessfully both in this Court and on direct appeal. See
United States v. Hester, 552 Fed. Appx. 580, 2014 WL 243178, at *2 (7th Cir. 2014) (“Judge
Dow correctly concluded that Officer Taylor's affidavit provided probable cause for the
search.”). Because this issue already has been ruled upon by the Seventh Circuit, this aspect of
Hester’s § 2255 motion will be denied without an evidentiary hearing because a § 2225 motion is
not a vehicle for appealing the same issue a second time. See Reed v. Farley, 512 U.S. 339, 35354 (1994), see also Fuller v. United States, 398 F.3d 644, (7th Cir. 2005) (“In the context of §
2255 motions, the ‘law of the case’ doctrine dictates that ‘once this court has decided the merits
of a ground of appeal, that decision establishes the law of the case and is binding on a [court]
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asked to decide the same issue in a later phase of the same case, unless there is some good reason
for reexamining it.’”) (citing United States v. Mazak, 789 F.2d 580, 581 (7th Cir. 1986)).
Hester contends that “this information was not made available until after the appeal was
final (for some mysterious reasons it was lost in the mail.)” Petition at 5. However, he does not
specify what “information” was not made available to him until after the appeal was final, and
the argument itself merely repeats the same argument raised many times in the district court and
also raised in the court of appeals. Therefore, the Court denies relief in regard to his Fourth
Amendment claim.
B.
Sixth Amendment Claims
Hester’s second ground for relief—that his Sixth Amendment rights to a Speedy Trial, to
counsel, and to confront witnesses were violated during his trial—were also all raised
unsuccessfully both in the trial court and on direct appeal, and meet the same fate as his Fourth
Amendment claim. See United States v. Hester, 552 Fed. Appx. 580, 2014 WL 243178, at *3
(7th Cir. 2014) (“* * * * Judge Dow correctly declined to compel production of the informant’s
identity * * * * Judge Holderman did not abuse his discretion in extending time for the
government to put certain witnesses or evidence before the grand jury * * * the “[f]ailure of
[Laws] to file an appearance did not * * * result in the defendant not being represented.”).
Hester also contends, as he did regarding his Fourth Amendment claim, that “this information
was not made available until after the appeal was final (for some mysterious reasons it was lost
in the mail.)” Petition at 7. However, he does not specify what “information” was not made
available to him until after the appeal was final, and these Sixth Amendment arguments, like the
Fourth Amendment argument above, are merely a repeat of the same arguments raised many
times in the district court and also raised in the court of appeals. Because these issues have
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already been ruled upon by the Seventh Circuit, Hester’s Sixth Amendment claims will be
denied without an evidentiary hearing. A § 2225 motion is not a vehicle for appealing the same
issue a second time.
C.
Jurisdiction
Hester’s third ground for relief, which he terms as a “jurisdiction violation” and further
describes as “a district court is without jurisdiction when there is no cause and/or crime
(defendant has no legal claim or standing in this instance),” is undeveloped and without merit.
See United States v. Bitterman, 320 F.3d 723, 727 (7th Cir. 2003) (“We will not entertain
[defendant’s] half-hearted and conclusory argument, as it lacks legal or factual support of any
kind * * * * We have held time and again that perfunctory and undeveloped arguments (even
constitutional ones) are waived * * *.”) (internal citations omitted).
D.
Fingerprints
Hester’s fourth ground for relief rests on the sufficiency of the evidence. On direct
appeal, Hester unsuccessfully raised the sufficiency of the evidence against him and the Seventh
Circuit rejected his argument. See United States v. Hester, 552 Fed. Appx. 580, 2014 WL
243178, at *3 (7th Cir. 2014) (“Hester further argues that the evidence presented at his trial was
insufficient to convict him. But a rational trier of fact could find him guilty.”). However, he
failed to make the specific argument that he now makes regarding the absence of fingerprints on
the evidence against him. Hester contends, as he did regarding his Fourth Amendment claim,
that “this information was not made available until after the appeal was final (for some
mysterious reasons it was lost in the mail.)” However, he does not specify what “information”
was not made available to him until after the appeal was final. He raised the fingerprint issue at
trial during his closing argument, and thus he cannot claim that he was unaware of this
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information until after the appeal was final. See Docket Entry 226 at 413-14 (“When Ms. Rees
came in and identified all this merchandise or evidence, she says she found fingerprints, three
latent prints on that plate, and neither one of them belong to the defendant.”). Hester cannot now
rectify his failure to raise this specific argument on direct appeal by raising it in his § 2255
petition, given that he clearly knew of it during his trial. In failing to make this specific
argument on direct appeal, Hester has procedurally defaulted on it and may not raise it via §
2255 absent a showing of cause and prejudice. Ballinger v. United States, 379 F.3d 427, 429-30
(7th Cir. 2004). A petitioner’s pro se status alone does not constitute cause in a cause-andprejudice analysis.
Smith v. McKee, 598 F.3d 374, 385 (7th Cir. 2010) (citing Harris v.
McAdory, 334 F.3d 665, 668 (7th Cir. 2003)); Barksdale v. Lane, 957 F.2d 379, 385-86 (7th Cir.
1992). Hester’s “fingerprints” claim is denied.
E.
Batson Challenge
Hester’s fifth ground for relief is that it is “unconstitutional to have all white jury and not
a jury of my peers in any form considering socioeconomic status of jurors (Ph.D.s, CEO [sic],
Professors, suburban white females and all victims of burglary at some point in their lives which
the prosecution harped on during trial.” Petition at 15. Hester did not raise any Batson argument
on direct appeal. See United States v. Hester, 552 Fed. Appx. 580, 2014 WL 243178 (7th Cir.
2014). His explanation for failing to raise this issue on direct appeal was “accidental oversight.”
Petition at 15. Since Hester failed to make this specific argument on direct appeal, he has
procedurally defaulted on it and may not raise it via § 2255 absent a showing of cause and
prejudice.
Ballinger v. United States, 379 F.3d 427, 429-430 (7th Cir. 2004).
Again, a
petitioner’s pro se status alone does not constitute cause in a cause-and-prejudice analysis.
Further, Hester has failed to make any sort of a record, via citations to the trial transcript,
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in support of his claim that his jury was all white, or of his apparent claim that some misconduct
occurred in the selection of the jury. Even though he is pro se, it is his responsibility to develop
his record in pursuing relief via § 2255. See Hale v. United States, 710 F.3d 711 (7th Cir. 2013).
Moreover, Hester’s unsupported observations about the composition of the jury are not sufficient
to support his contention.
A defendant’s “mere observation that there were no African-
Americans on a panel that was drawn from a population containing African-Americans simply is
not sufficient to demonstrate any systematic exclusion.” United States v. Cooke, 110 F.3d 1288,
1301 (7th Cir. 1997) (quoting United States v. Guy, 924 F.2d 702, 706 (7th Cir. 1991). Hester’s
Batson claim is denied.
F.
Fair Sentencing Act
Hester argues at great length that he was sentenced to a mandatory minimum in violation
of the Fair Sentencing Act, and that the Fair Sentencing Act should have somehow resulted in his
release from custody on July 3, 2012. Hester failed to raise any issues concerning the Fair
Sentencing Act on direct appeal. See United States v. Hester, 552 Fed. Appx. 580, 2014 WL
243178, at *3 (7th Cir. 2014). As explained above regarding Hester’s “fingerprints” and Batson
arguments, Hester therefore cannot raise this issue via § 2255 absent a showing of cause and
prejudice.
Moreover, his premise is incorrect: Hester was sentenced in accordance with the Fair
Sentencing Act. As explained above, as of the date that Hester committed the offenses at issue
in the superseding indictment, the enhanced penalty for a violation of 21 U.S.C. §
841(b)(1)(B)(iii) consisted of a 10-year mandatory minimum and a statutory maximum of life.
The current enhanced penalty, as a result of the Fair Sentencing Act, for 5 or more grams of
crack cocaine but less than 28 grams, was a statutory maximum of thirty years, but no mandatory
10
minimum. Cf. 21 U.S.C. § 841(b)(1)(B)(iii) and (C) (2010); 21 U.S.C. § 841(b)(1)(B)(iii) and
(C)(2011). Despite his assertions that he was subject to a mandatory minimum of 10 years,
Hester was not subject to any mandatory minimum at all. As stated above, the updated
presentence investigation report, prepared after the Supreme Court’s decision in Dorsey v.
United States, 132 S.Ct.2321 (2012), and consistent with Dorsey’s holding, reflected that Hester
was subject to a maximum term of imprisonment of ten years on Count One, pursuant to 18
U.S.C. § 922(g)(1).
It further reflected that Hester was subject to a maximum term of
imprisonment of thirty years for both Counts Two and Three, pursuant to 21 U.S.C. §§
841(a)(1)(C) and 851. The statutory maximum for Counts Two and Three was increased as a
result of an Information Stating Previous Conviction to Be Relied Upon in Seeking Increased
Punishment pursuant to 21 U.S.C. § 851(a). Hester was not subject to any statutory mandatory
minimum on any count of conviction against him. 21 U.S.C. §§ 841(a)(1)(C) and 851.
Although Hester argues vehemently to the contrary, he fails to cite to the PSR, sentencing
transcript, judgment and commitment order or any other document in support of his contention
that he was subject to a mandatory minimum in violation of the Supreme Court’s decision in
Dorsey. He further fails to cite to any authority for the proposition that the Dorsey decision
should have resulted in automatic release or a substantially reduced sentence, and fails to present
any explanation for his failure to make these arguments on direct appeal. Since he has failed to
meet his burden of cause and prejudice on this issue, and since his reasoning is unsupported and
just plain wrong, his claims regarding the Fair Sentencing Act are denied.
G.
Alleyne v. United States
Hester further argues that he was sentenced to a mandatory minimum in violation of the
Supreme Court’s decision in Alleyne v. United States, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013).
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Hester unsuccessfully argued Alleyne on direct appeal. See United States v. Hester, 552 Fed.
Appx. 580, 2014 WL 243178, at *2 (7th Cir. 2014) (“Alleyne matters only when a defendant’s
statutory minimum sentence is raised by a finding of fact * * * * Hester was not subject to any
statutory minimum sentence, so his sentence could not violate Alleyne.”). Because this issue has
already been ruled upon by the Seventh Circuit, this aspect of Hester’s § 2255 is denied without
an evidentiary hearing because a § 2225 motion is not a vehicle for appealing the same issue a
second time.
*****
Relief under § 2255 is an extraordinary remedy because it asks the district court to reopen
the criminal process to a person who already has had an opportunity for full process. Almonacid
v. United States, 476 F.3d 518, 521 (7th Cir. 2007). Such relief is reserved for extraordinary
situations (see Brecht v. Abrahamson, 507 U.S. 619, 633-34 (1993)), and is appropriate only for
“an error of law that is jurisdictional, constitutional, or constitutes a fundamental defect which
inherently results in a complete miscarriage of justice.” Borre v. United States, 940 F.2d 215,
217 (7th Cir. 1991) (citations omitted). Hester has failed to demonstrate any such errors: indeed,
every issue he raised was either raised unsuccessfully earlier in the proceedings, was lacking in
factual support in the record, was not developed, or was procedurally defaulted.
An evidentiary hearing must be held if the petitioner “alleges facts that, if proven, would
entitle him to relief.” Sandoval v. United States, 574 F.3d 847, 850 (7th Cir. 2009). However,
no evidentiary hearing is necessary if “the motion and the files and records of the case
conclusively show that the prisoner is entitled to no relief.” Bruce v. United States, 256 F.3d
592, 597 (7th Cir. 2001) (quoting Title 28 U.S.C. § 2255). The record before the Court clearly
shows that Hester is not entitled to relief.
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III.
Certificate of Appealability
Under the 2009 Amendments to Rule 11(a) of the Rules Governing Section 2254
Proceedings, the “district court must issue or deny a certificate of appealability when it enters a
final order adverse to the applicant.” Accordingly, the Court must determine whether to grant
Petitioner Hester a certificate of appealability pursuant to 28 U.S.C. § 2253(c)(2).
A habeas petitioner does not have the absolute right to appeal a district court's denial of
his habeas petition; instead, he must first request a certificate of appealability. See Miller–El v.
Cockrell, 537 U.S. 322, 335 (2003); Sandoval v. United States, 574 F.3d 847, 852 (7th Cir.
2009). A habeas petitioner is entitled to a certificate of appealability only if he can make a
substantial showing of the denial of a constitutional right. Miller–El, 537 U.S. at 336; Evans v.
Circuit Court of Cook County, Ill., 569 F.3d 665, 667 (7th Cir. 2009). Under this standard,
Petitioner must demonstrate that “reasonable jurists could debate whether (or, for that matter,
agree that) the petition should have been resolved in a different manner or that the issues
presented were adequate to deserve encouragement to proceed further.” Miller–El, 537 U.S. at
336 (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). And in cases where a district court
denies a habeas claim on procedural grounds, the habeas court should issue a certificate of
appealability only if the petitioner shows that (1) jurists of reason would find it debatable
whether the petition states a valid claim of the denial of a constitutional right, and (2) jurists of
reason would find it debatable whether the district court was correct in its procedural ruling. See
Slack, 529 U.S. at 485.
Consistent with the detailed discussion above, the Court concludes that Petitioner has not
made a substantial showing of the denial of a constitutional right, nor would reasonable jurists
13
differ on the Court’s assessment of Petitioner’s claims. Thus, the Court declines to certify any
issues for appeal pursuant to 28 U.S.C. § 2253(c)(2).
IV.
Conclusion
For the reasons set forth above, the Court denies Petitioner Joe Hester’s motion to vacate,
set aside, or correct sentence by person in federal custody pursuant to 28 U.S.C. § 2255 [1],
denies as moot his motion to request “order” or “standing order” for unimpeded access to the
court [8], declines to certify any issue for appeal, and directs the Clerk to enter judgment in favor
of the United States.
Dated: July 11, 2014
__________________________________
Robert M. Dow, Jr.
United States District Judge
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