Beard v. USA

Filing 33

ORDER DENYING 1 MOTION to Vacate, Set Aside or Correct Sentence (2255) and 15 MOTION to Vacate filed by Cartez R Beard, DISMISSING CASE and DECLINING to issue certificate of appealability. Further, the Court DIRECTS the Clerk of the Court to enter judgment. Signed by Judge David R. Herndon on 10/17/16. (lmp)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
CARTEZ R. BEARD,
Petitioner,

Civil Case No. 14-cv-897-DRH
Criminal Case No. 12-cr-30144-DRH

v.
UNITED STATES OF AMERICA,
Respondent.

MEMORANDUM and ORDER
HERNDON, District Judge:
I.

Introduction

This matter is before the Court on petitioner Cartez R. Beard’s motion to
vacate, set aside, or correct sentence, pursuant to 28 U.S.C. § 2255 (Doc. 1). The
government filed its response in opposition of Beard’s § 2255 petition (Doc. 9).
Additionally, Beard filed a motion for leave to amend the § 2255 (Doc. 5). Upon
granting the motion to amend, and given the difficult legal issues involved, the
Court found this to be an appropriate case to appoint counsel, specifically for the
purposes of amending Beard’s petition with regard to the applicability of the
Aggravated Unlawful Use of a Weapon statute 720 ILCS 5/24-1.6(a)(1) to Beard’s
claims (Doc. 7). Thereafter, Beard’s counsel filed an amended § 2255 petition

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(Doc. 15), to which the government responded (Doc. 24). For the following
reasons, petitioner’s motion for relief pursuant to 28 U.S.C. § 2255 is DENIED. 1
II.

Background

On September 27, 2012, petitioner pleaded guilty to being a felon in
possession of a firearm. The predicate felony was for Aggravated Unlawful Use of a
Weapon (AUUW), in violation of 720 ILCS 5/24-1.6(a)(1). Pursuant to 18 U.S.C. §
922(g)(1), this Court sentenced petitioner to 96 months (United States v. Beard,
12-cr-30144-DRH2, (Doc. 49)). Petitioner was released on bond prior to pleading
guilty, and during that time, he was arrested for shooting a woman who was nine
months pregnant at the time. At his sentencing he denied shooting her, despite the
victim’s presence and testimony.
During the proceedings, Assistant Federal Public Defender Thomas Gabel
represented Beard, and filed a notice of appeal on his behalf (Cr. Doc 51). On
appeal, Beard argued that the Court erred in denying a reduction for acceptance
in responsibility. On the basis of controlling precedent and Beard’s unwillingness
to cease criminal activity, the Seventh Circuit affirmed this Court’s judgment. See

United States of America v. Beard, No. 13-1603 (7th Cir. Nov. 20, 2013) (citing

Having examined the record, the Court concludes Beard’s claims do not warrant an evidentiary
hearing. See Galbraith v. United States, 313 F.3d 1001, 1009 (7th Cir. 2002) (“for a hearing to be
granted, the petition must be accompanied by a detailed and specific affidavit which shows that
the petitioner [has] actual proof of the allegations going beyond mere unsupported assertions”);
Menzer v. United States, 200 F.3d 1000, 1005 (7th Cir. 2000) (held that a hearing not required
where the record conclusively demonstrates that defendant is not entitled to relief on § 2255
motion); Cooper v. United States, 378 F.3d 638, 641; see also Rules 4(b) and 8(a) of Rules
Governing Section 2255 Proceedings).
1

2

Further reference to Beard’s criminal docket in this order will include “Cr. Doc.” prior to the
document number to differentiate from his civil habeas case filings.
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United States v. Sellers, 595 F.3d 791,793 (7th Cir. 2010). Petitioner also argued
that the Court imposed an unreasonable prison sentence of 96 months, but the
Seventh Circuit affirmed the sentence. The Seventh Circuit dismissed Beard’s
appeal stating that this Court “offered adequate reasons consistent with the
statutory factors in 18 U.S.C. § 3553(a).” See United States of America v. Beard,
No. 13-1603 (7th Cir. Nov. 2013).
Subsequent to the dismissal of his appeal, on August 15, 2014, Beard filed
his petition seeking relief under 28 U.S.C. § 2255 (Doc. 1). In his § 2255 petition
and supplement, Beard raises four claims: (1) ineffective assistance of counsel for
failing to reject alleged “false statements that placed upon [Beard]”; and (2) failure
to be appointed a new attorney on appeal; (3) failure to receive acceptance of
responsibility points to toward lowering his sentence; and (4) Beard is actually
innocent of the §922(g)(1) conviction based on the invalidity of his previous
sentence for AUUW.
III.

Law

A prisoner may move to vacate, set aside or correct his sentence if he
claims “the sentence was imposed in violation of the Constitution or laws of the
United States, or that the court was without jurisdiction to impose such sentence,
or that the sentence was in excess of the maximum authorized by law, or is
otherwise subject to collateral attack.” 28 U.S.C. § 2255(a).
Section 2255 is an extraordinary remedy because it asks the district court
“to reopen the criminal process to a person who has already had an opportunity
for full process.” Almonacid v. United States, 476 F.3d 518, 521 (7th Cir. 2007).
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Accordingly, relief under Section 2255 is “reserved for extraordinary situations,”

Prewitt v. United States, 83 F.3d 812, 816 (7th Cir. 1996) (citing Brecht v.
Abrahamson, 507 U.S. 619, 633-34 (1993)), as a collateral attack pursuant to
Section 2255 is not a substitute for a direct appeal. Varela v. United States, 481
F.3d 932, 935 (7th Cir. 2007).
Unless a movant demonstrates changed circumstances in fact or law, he
may not raise issues already decided or waived on direct appeal. Olmstead v.

United States, 55 F.3d 316, 319 (7th Cir. 1995).

A petitioner cannot raise

constitutional issues that he could have, but did not directly appeal, unless he
shows good cause for, and actual prejudice from, his failure to raise them on
appeal, or unless failure to consider the claim would result in a fundamental
miscarriage of justice. Bousley v. United States, 523 U.S. 614, 622 (1998);

Wainwright v. Sykes, 433 U.S. 72, 87 (1977); Fountain v. United States, 211 F.3d
429, 433 (7th Cir. 2000). Likewise, a Section 2255 motion cannot pursue nonconstitutional issues that were not raised on direct appeal regardless of cause and
prejudice. Lanier v. United States, 220 F.3d 833, 842 (7th Cir. 2000). The only
way such issues could be heard in the Section 2255 context is if the alleged error
of law represents “a fundamental defect which inherently results in a complete
miscarriage of justice.” United States v. Addonizio, 442 U.S. 178, 185 (1979).
Beard raises four claims, some of which he purports to be claims of
ineffective assistance of counsel. To succeed on an ineffective assistance of
counsel claim, a petitioner must demonstrate (1) his attorney’s performance “fell

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below an objective standard of reasonableness,” and (2) “but for counsel’s
unprofessional errors the result of the proceeding would have been different.”

Strickland v. Washington, 466 U.S. 668, 694 (1984). To satisfy the first prong,
“the Court must determine whether, in light of all the circumstances, the
identified acts or omissions were outside the wide range of professionally
competent assistance.” Id. at 690. To satisfy the second prong, a petitioner must
demonstrate to a “reasonable probability” that without the unprofessional errors,
“the result of the proceeding would have been different.” Id. at 696.
A district court’s analysis begins with a “strong presumption that the
defendant’s attorney rendered adequate representation of his client.” United

States v. Meyer, 234 F.3d 319, 325 (7th Cir. 2000). Thus, a petitioner must
overcome a heavy burden to prove that his attorney was constitutionally deficient.

Shell v. United States, 448 F.3d 951, 955 (7th Cir. 2006). In order to establish
that counsel’s performance was deficient, the defendant must show errors so
serious that “counsel was not functioning as the ‘counsel’ guaranteed the
defendant by the Sixth Amendment.” Atkins v. Zenk, 667 F.3d 939, 944 (7th Cir.
2012). The Court now turns to Beard’s claims.
IV.

Argument

a. Claims 1: Petitioner’s Attorney Was Ineffective for Failing to Object to
“ Many False Statements” Attributed to Beard and for “ Failing to Fight for
Him” .
Petitioner’s first ground for relief asserts a claim for ineffective performance
by his attorney for failing to object to the various “false statements” that were

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attributed to him during his case, and that his attorney “did not fight for him”
(Doc.1). Regarding the first prong of the Strickland test, counsel's performance
must be evaluated keeping in mind that an attorney's trial strategies are a matter
of professional judgment and often turn on facts not contained in the trial record.

Strickland, 466 U.S. at 689. The petitioner's burden is heavy because the
Strickland test is “highly deferential to counsel, presuming reasonable judgment
and declining to second guess strategic choices.” United States v. Shukri, 207
F.3d 412, 418 (7th Cir. 2000) (quotations omitted). With regard to the second
prong of Strickland, the petitioner must show that there is a reasonable
probability that, but for counsel's unprofessional errors, the result of the
proceedings would have been different. Adams v. Bertrand, 453 F.3d 428, 435
(7th Cir.2006). “A reasonable probability is defined as one that is sufficient to
undermine confidence in an outcome.” Adams, 453 F.3d at 435 (citing Strickland,
466 U.S. at 694).
Here, Beard fails to identify which “false statements” were attributed to him
without objection from his counsel, or when during his case those statements
were made. Beard also fails to explain how his lawyer failed to “fight for him,”
offering nothing more than his unsupported allegation. These general allegations
are insufficient to support habeas corpus relief. See e.g., Richardson v. United

States, 379 F.3d 485, 488 (7th Cir.2004) (denying § 2255 claim based upon
failure to investigate where defendant provided no details, evidence, or allegations
regarding that claim). “An ineffective assistance of counsel claim cannot stand on

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a blank record, peppered with the defendant’s own unsupported allegations of
misconduct.” United States v. Hodges, 259 F.3d 655, 660 (7th Cir. 2001); Fuller

v. United States, 398 F.3d 644, 652 (7th Cir. 2005)(finding that a claim of
ineffective assistance unsupported by “actual proof of [his] allegations” cannot
meet the threshold requirement for purposes of § 2255).
In the government’s response to Beard’s petition, it was believed that after
review of the record, “it is reasonable to infer that Beard’s contention refers to the
testimony of Makeela King presented at his sentencing hearing” (Crim. Docs. 26 &
45). Even using such inferences, and drawing them in Beard’s favor, his argument
still fails to meet the Strickland test.
King identified Beard in open court and told the Court that she had
previously identified Beard as her shooter. The government relied on Ms. King’s
testimony to support its argument, alongside the PSR’s recommendation, that
Beard should not receive a three-level reduction for acceptance of responsibility.
(Doc. 6-1, pg. 57).

Once again, at no point does Beard identify which “false

statements” were attributed to him without objection by his counsel, or when
during his case that those statements were made.
In fact, the record clearly shows that Gabel did in fact “fight for” his client.
Gabel filed written objections to the PSR’s failure to grant Beard a §3E1.1
adjustment for Acceptance of Responsibility (Cr. Doc. 34), and Gabel preserved
that objection at the sentencing hearing. Gabel also argued against the

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government’s recommendation for an upward variance from the guideline range at
the time of sentencing (Doc. 6-1, pg. 76-78).
Simply stated, Beard has not shown that Mr. Gabel’s performance was
objectively

unreasonable.

The

record

before

the

Court

reveals

nothing

unreasonable in Gabel’s representation. The evidence establishes that Gabel
worked diligently to assess the case, consult his client, and examine witnesses in
such a way to be as beneficial as possible for his client.
A

review

of

the

record

also

demonstrated

that

counsel

covered

impeachment on prior inconsistent statements, all evidence showing bias, and his
challenge of the witness’s credibility. Moreover, a counsel’s failure to challenge a
witness’s credibility, in and of itself, does not satisfy the prejudice prong in

Strickland. See Spreitzer v. Peters, 114 F.3d 1435, 1455 (7th Cir. 1997)(noting
that counsel’s failure to challenge a witness’s credibility, without more, is
insufficient to establish the requisite prejudice).
Looking specifically to the testimony of Ms. King, Gabel cross-examined her
about the truthfulness of her statements, lies on her sworn affidavit, and the
credibility of her identification of Beard as her shooter (Id. at pg. 40-45). Gabel
also re-crossed King to further highlight her multiple versions of events (Id. at pg.
47-48). Furthermore, Mr. Gabel produced a witness to further challenge Ms.
King’s credibility. Thereafter, the Court weighed the evidence presented against
Beard and ultimately found King’s testimony credible. The Court considered the

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arguments made by both defense counsel and the government before reaching its
decision as to the length of Beard’s sentence.
After all arguments were considered, the Court imposed a 96 month
sentence. Nothing in the record indicates that if Mr. Gabel fought for his client
more, or made more objections, that Beard would have been sentenced to a lesser
term of imprisonment. Beard voluntarily signed a plea agreement where he
admitted the facts of the case that included the details about his possession of a
gun as a prior felon.
Furthermore, Beard offered nothing more than a blanket assertion
regarding counsel’s alleged errors. A petitioner must show that but for counsel's
unprofessional errors, the result of the proceedings would have been different.
Beard failed to do so. Therefore, the Court need go no further, since a defendant
who fails to prove either prong of the Strickland test dooms his ineffective
assistance claim.

b. Claim 2: Petitioner’s Attorney Was Ineffective for Moving to Withdraw
from Representing Beard on Appeal and Beard did not receive a New
Attorney to Represent Him on Appeal.
Beard next claims that Mr. Gabel’s performance was deficient because he
withdrew from representing Beard on appeal, and at that time, no new lawyer was
appointed to represent him. However, after review of the record it is clear that
Beard is mistaken, and in fact he was represented throughout the entirety of his
appellate proceedings.

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Gabel did move to withdraw from representing Beard (United States v.

Beard, No. 13-1603, Doc. 4), but the motion was not granted until the appeal
itself was resolved. Mr. Gabel first filed the motion to withdraw as counsel
followed by an Anders brief. A lawyer has a duty to file an Anders brief rather
than to argue frivolous grounds for reversal. United States v. Gammicchia, 498
F.3d 467 (7th Cir.2007) (A defendant's attorney should file an Anders motion
when a criminal appeal is frivolous); Anders v. California, 386 U.S. 738 (1967).
Beard has no constitutional right to force “counsel to press nonfrivolous points
requested by the client, if counsel, as a matter of professional judgment, decides
not to present those points.” Jones v. Barnes, 436 U.S. 745, 751 (1983). It is well
settled that a petitioner cannot establish ineffective assistance of counsel based
solely on the fact that counsel failed to present certain issues on appeal. Page v.

United States, 884 F.2d 300, 302 (7th Cir. 1989).
Following the filing of the motion to withdraw, Beard was given 30 days to
respond. Beard did file a response alleging arguments that he believed to support
his appeal (United States v. Beard, No. 13-1603, Doc. 10),

Thereafter, the

Seventh Circuit issued its Order dismissing the appeal on November 20, 2013.
(United States v. Beard, No. 13-1603, Doc. 12) (7th Cir. November 20, 2013). In
that same order, Mr. Gabel’s motion to withdraw was granted.
Gabel continued to represent Beard until the resolution of his appeal.
Furthermore, the appeal itself was timely filed. Thus, Beard did not suffer any
prejudice from Gabel’s actions on appeal and Beard has failed to show how the

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outcome of the appeal would have differed but for Gabel’s actions. The Court also
notes that the record undermines any chance Beard had to prove the second
prong of the Strickland test. As stated previously, Beard identified no evidence
supporting the theory that but for Gabel’s withdraw from the case, the result
would have been different. Thus, Beard has met neither prong of the Strickland
test. Accordingly, Beard’s second argument must fail.

c . Claim 3: The Court erred in Failing to Reduce Beard’s Guideline Range by
Three-levels for Acceptance of Responsibility.
With respect to Beard’s third claim that the district court erred in denying a
reduction for acceptance of responsibility, this argument too must fail. That issue
was raised and litigated on direct appeal, and decided against Beard.

United

States v. Beard, No. 13-1603, Doc. 12 (7th Cir. November 20, 2013). Those
matters decided on appeal cannot be re-litigated in a § 2255 Motion. Varela, 481
F.3d 932 (“A § 2255 motion is neither a recapitulation of nor a substitute for a
direct appeal.” (quotation marks and citations omitted)); Belford v. United States,
975 F.2d 310, 313 (7th Cir.1992) (holding that “issues that were raised on direct
appeal, absent a showing of changed circumstances” cannot be raised in a 2255
motion).
The Seventh Circuit previously stated during Beard’s appeal that:
“We give great deference to a district judge’s credibility
findings. United States v. Pabey, 664 F.3d 1084, 1094 (7th Cir.
2011); United States v. Pulley, 601 F.3d 660, 664 (7th Cir. 2010).
Although Beard’s lawyer tried to discredit the victim, the defendant
himself never denied under oath that he was the one who shot her.
Indeed, he offered no evidence to contradict her testimony, and when
a dispute will be decided based on a preponderance of the evidence—
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as this one was—a party who shuns the opportunity to present
evidence is almost assured of losing. See United States v. Torres, 977
F.2d 321, 330 (7th Cir. 1992) (explaining that there was “little
reason” to question court’s sentence when defendant had opportunity
but failed to object to facts underlying upward departure); United
States v. Pinnick, 47 F.3d 434, 437 (D.C. Cir. 1995) (reasoning that
defendant’s failure at sentencing to contest facts related to dismissed
charges left little doubt that acts had occurred). The district judge
was aware that the victim had briefly recanted her prior identification
of Beard as the shooter, but the judge was satisfied with the victim’s
explanation that Beard had sent an intermediary offering $10,000 if
she recanted and threatening her if she refused. Based on the victim’s
testimony, the district court concluded that the government had
established by a preponderance that while on bond Beard took to the
streets with a gun looking for vengeance against his rival who had
previously assaulted him. The court had discretion to deny a
reduction for acceptance of responsibility because Beard did not
cease his criminal conduct, see United States v. Sellers, 595 F.3d
791, 793 (7th Cir. 2010); United States v. McDonald, 22 F.3d 139,
141 (7th Cir. 1994), and any argument to the contrary would be
frivolous.”

United States v. Beard, No. 13-1603, Doc. 12 (7th Cir. November 20, 2013). As
mentioned above, those matters decided on appeal cannot be re-litigated in a §
2255 Motion. Varela, 481 F.3d 932.
Accordingly, Beard’s claims arguing the following are procedurally barred.

White v. United States, 371 F.3d 900, 902-03 (7th Cir. 2004) (“[T]he courts,
including our court, forbid a prisoner to relitigate in a collateral proceeding an
issues that was decided on his direct appeal. . . . It makes no difference that
[petitioner’s] claim had been presented in his direct appeal in an Anders brief on
the basis of which we dismissed the appeal as frivolous. Presented is presented,
whether in an Anders brief or in any other format; and if an appeal is dismissed
as frivolous, that is a binding adjudication that the claims presented in it had no

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merit at all, rather than an invitation to refile.”). Moreover, this Court is precluded
from reviewing any claim of an alleged improperly calculated Guideline range. See

United States v. Wisch, 275 F.3d 620, 625 (7th Cir. 2001) (“Allegations that the
district judge misapplied the sentencing guidelines are not reviewable under §
2255.”) (citing Scott v. United States, 997 F.2d 340, 343 (7th Cir. 1993)).
Accordingly, Beard’s third argument in support of his 2255 Motion also fails.
d. Claim 4: Petitioner Beard is Actually Innocent of the AUUW Conviction

Underlying His Felon in Possession of a Firearm Conviction.

Looking now to Beard’s final claim, he challenges his 2009 felony conviction
for aggravated unlawful use of a weapon (AUUW) under Illinois law, 720 ILCS
5/24-1.6(a)(1), arguing that the Seventh Circuit Court of Appeals held in Moore v.

Madigan, 702 F.3d 933 (7th Cir.2012), that the Second Amendment barred
Illinois’ “flat ban on carrying ready-to-use guns outside the home”. Moore, 702
F.3d at 940.

Moore invalidated Illinois’ complete ban on handgun carrying, a

decision which was later echoed by the Illinois Supreme Court in People v.

Aguilar, 2 N.E.3d 321, 328 (Ill.2013).
In this case, the key issue in play is the effective date of the Moore opinion
based on an exception to the Sentencing Guidelines listed U.S.S.G § 4A1.2 n. 6.
The exception in U.S.S.G. § 4A1.2 n. 6 states:
“Sentences resulting from convictions that (A) have been reversed
or vacated because of errors of law or because of subsequently
discovered evidence exonerating the defendant, or (B) have been

ruled constitutionally invalid in a prior case are not to be counted.

With respect to the current sentencing proceeding, this guideline and
commentary do not confer upon the defendant any right to attack
collaterally a prior conviction or sentence beyond any such rights
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otherwise recognized in law (e.g. 21 U.S.C. 851 expressly provides
that a defendant may collaterally attack certain prior convictions).
Nevertheless, the criminal conduct underlying any conviction
that is not counted in the criminal history score may be considered
pursuant to §4A1.3”
U.S.S.G. § 4A1.2 n. 6 (emphasis added).
In this case, Subsection (B) of U.S.S.G. § 4A1.2 n. 6 is at issue. The
Seventh Circuit has read Subsection (B) to contain two requirements: “(i) the
sentence resulted from a conviction that was ruled constitutionally invalid; and (ii)
that ruling occurred in a prior case.” United States v. Jenkins, 772 F.3d 1092,
1097 (7th Cir. 2014). Here, it appears that Beard’s sentence fails to meet both of
those requirements.
In Jenkins, the defendant challenged the assessment of criminal history
points based on an Illinois AUUW conviction, also under 720 ILCS 5/24–1.6(a)(1),
which had been held facially unconstitutional at the time of his sentencing.

Jenkins, 772 F.3d at 1096. In Beard’s case, the Moore decision invalidated
Illinois’ complete ban on handgun carrying, thus finding 720 ILCS 5/24-1.6(a)(1)
unconstitutional, similar to Jenkins. Therefore, Beard satisfies the first factor of
Subsection (B) of U.S.S.G. § 4A1.2 n. 6. However, as mentioned above, the timing
of the mandate remains the key issue in this matter, and Beard fails to satisfy the
second factor.
The Seventh Circuit decided Moore on December 11, 2012, but the
mandate was stayed 180 days and ultimately not issued until July 9, 2013.

Aguilar was not decided until September 2013, which was six months after

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Beard’s sentencing on March 15, 2013. Relying on Moore, Beard argues that 720
ILCS 5/24-1.6(a)(1) was declared constitutionally invalid and, therefore, his
AUUW conviction is void. Although Beard is correct that the Moore decision
declared the Illinois’ AUUW statute unconstitutional, the effective date of the
decision was not until July 9, 2013, the date in which the mandate was issued.
The government points out that the Seventh Circuit stayed its mandate in
order to allow the Illinois legislature an opportunity to "craft a new gun law that
will impose reasonable limitations, consistent with the public safety and the
Second Amendment as interpreted in this opinion, on the carrying of guns in
public." Moore, 702 F.3d at 942. Although the stayed decision placed the Illinois
legislature and the public on notice of the Moore holding and its effect on Illinois’
AUUW statute, the stay also means that the Seventh Circuit’s holding was not yet
in effect. As the government correctly points out, “[t]he stay preserved the status
quo—the state of the law prior to the issuance of the Moore decision.” (Doc. 24).
Given that Beard was sentenced between the time when Moore was issued
and the end of the 180 day stay period, he was correctly sentenced under the law
that existed at the time of his sentencing on March 15, 2013. Therefore, Beard
fails to satisfy the second requirement set forth in Subsection (B) of U.S.S.G. §
4A1.2 n. 6 requiring the court’s ruling to have occurred in a prior case.
Accordingly, Beard’s fourth ground for relief, is denied and his motion to vacate,
set aside, or correct sentence, pursuant to 28 U.S.C. § 2255 is denied in its
entirety.

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V.

Certificate of Appealability Denied

Under the 2009 Amendments to Rule 11(a) of

THE

RULES GOVERNING SECTION

2255 PROCEEDINGS, a “district court must issue or deny a certificate of
appealability when it enters a final order adverse to the applicant.” Thus, the
Court must determine whether petitioner's claims warrant a certificate of
appealability pursuant to 28 U.S.C. § 2253(c)(2). A habeas petitioner does not
have an absolute right to appeal a district court’s denial of his habeas petition; he
may appeal only those issues for which a certificate of appealability has been
granted. See Sandoval v. United States, 574 F.3d 847, 852 (7th Cir. 2009).
For a court to issue a certificate of appealability, a petitioner must make a
“substantial showing of the denial of a constitutional right,” meaning, “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 v. Cockrell,
537 U.S. 322, 336 (2003) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000));
28 U.S.C. § 2253(c)(2).
As to petitioner's claims, the Court finds that reasonable jurists would not
debate that the petition does not present a valid claim of the denial of a
constitutional right, as petitioner's claim of ineffective assistance of counsel and a
change in law do not present evidence of constitutionally deficient attorney
performance; nor do they demonstrate resulting prejudice. Further, the Court

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finds that reasonable jurists could not differ on these conclusions. Therefore, the
Court declines to certify any issues for review pursuant to 28 U.S.C. § 2253(c).
VI.

Conclusion

For the reasons as discussed herein, Beard’s motion pursuant to 28 U.S.C.
§ 2255 to vacate, set aside or correct sentence is DENIED (Docs. 1 & 15) and
Beard’s claims are DISMISSED with prejudice. The Court ORDERS the Clerk of
the Court to enter judgment accordingly. Further, the Court DECLINES to issue a
certificate of appealability.
IT IS SO ORDERED.
Signed this 17th day of October, 2016.

Digitally signed by Judge
David R. Herndon
Date: 2016.10.17 13:51:52
-05'00'
United States District Judge

e

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