Sewell v. USA

Filing 1

OPINION AND ORDER DENYING Petitioner Booker T Sewell's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence (DE 247 in Case No. 1:11-CR-35). The Court declines to issue a certificate of appealability. Signed by Chief Judge Theresa L Springmann on 4/18/2019. (Copy mailed to Petitioner Booker via certified mail 7000 1670 0012 9261 0143)(lns)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
UNITED STATES OF AMERICA
v.

CAUSE NO.: 1:11-CR-35-TLS
1:18-CV-350

BOOKER T. SEWELL
OPINION AND ORDER
Pending before the Court is the Defendant’s Motion to Vacate Pursuant to 28 U.S.C. §
2255 [ECF No. 247]. Having considered the submissions of the parties, the Motion will be
denied for the reasons stated in this Opinion and Order.

BACKGROUND
The Defendant, Booker T. Sewell, is currently serving a term of imprisonment after being
convicted by a jury of being a felon in possession of a firearm, in violation of 18 U.S.C. §
922(g)(1), and maintaining a place for the purpose of distributing and using a scheduled II
controlled substance, cocaine, and a schedule I controlled substance, marijuana, in violation of
21 U.S.C. § 856(a)(1).
The Defendant was indicted after police obtained a warrant to search a residence at a
particular address on Sawmill Woods Court in Allen County, Indiana (the Residence). The
warrant was based on information provided in an affidavit that outlined how controlled
purchases of crack and powder cocaine led to court authorization to wiretap the telephones of
several individuals in efforts to determine the supply network. Through these wiretaps,
investigators identified Silvestre Castaneda as a drug supplier. By intercepting Castaneda’s
communications, they also identified the Defendant as a person involved in the drug trafficking

organization. During the execution of the search warrant, the police found incriminating
evidence.
Before trial, the Defendant moved to suppress the evidence obtained during the search.
The Court denied the motion in an Opinion and Order dated November 17, 2011 [ECF No. 32].
On March 26, 2012, the Defendant went to trial and, on March 29, 2012, a jury found him guilty
of both counts [ECF No. 55]. The jury also rendered a special forfeiture verdict, finding the gun
and ammunition to be involved in Count 1, and finding the cash, gun, and ammunition to be used
or intended to be used to commit or to facilitate the commission of Count 2 [ECF No. 60]. On
October 3, 2012, the Court held an evidentiary hearing regarding sentencing issues [ECF No.
87], and on February 10, 2014, the Court sentenced the Defendant to 360 months of
imprisonment on Count 1 and a concurrent 240 months of imprisonment on Count 2, with the
Defendant being an armed career criminal [ECF Nos. 113, 114].
The Defendant filed a direct appeal. The Seventh Circuit held that search warrant was
supported by probable cause, that sufficient evidence supported the Defendant’s conviction of
being a felon in possession of a firearm, and that the district court properly applied a sentencing
enhancement for the drug quantity and for possession of a firearm in connection with a
controlled substance offense. United States v. Sewell, 780 F.3d 839, 847–50 (7th Cir. 2015).
However, the court vacated the conditions of supervised release and remanded for
reconsideration of the conditions. Id. at 850–52.
On January 12, 2016, the Court resentenced the Defendant, based on the limited remand,
to the same 360 months on Count 1 and concurrent 240 months on Count 2 [ECF Nos. 160, 161].
However, after Johnson v. United States, 135 S. Ct. 2551 (2015), the Defendant was no longer an
armed career criminal, and on October 4, 2017, the Court conducted a resentencing hearing [ECF

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No. 225]. The Court sentenced the Defendant to 312 months of imprisonment total: 120 months
on Count 1 and 192 months on Count 2, consecutive. (Id.) The Defendant appealed the sentence,
but the Seventh Circuit agreed with appellate counsel that this appeal was frivolous. United
States v. Sewell, 715 Fed. Appx. 567 (7th Cir. Mar. 22, 2018). On October 29, 2018, the
Defendant filed his § 2255 Motion to Vacate.

DISCUSSION
Section 2255 allows a person convicted of a federal crime to seek to vacate, set aside, or
correct his sentence. This relief is available only in limited circumstances, such as where an error
is of jurisdictional or constitutional magnitude, or where there has been an error of law that
“constitutes a fundamental defect which inherently results in a complete miscarriage of justice.”
See Harris v. United States, 366 F.3d 593, 594 (7th Cir. 2004) (internal quotation omitted).
Motions to vacate a conviction or correct a sentence ask a court to grant an extraordinary remedy
to a person who has already had an opportunity of full process. Kafo v. United States, 467 F.3d
1063, 1068 (7th Cir. 2006). A Section 2255 motion is not a substitute for a direct criminal appeal
nor is it a means by which a defendant may appeal the same claims a second time. See Bousley v.
United States, 523 U.S. 614, 621 (1998) (relief under 2255 “will not be allowed to do service for
an appeal”); Varela v. United States, 481 F.3d 932, 935 (7th Cir. 2007) (Section 2255 motion is
“neither a recapitulation of nor a substitute for a direct appeal.”) (citation omitted). Issues that
were raised on direct appeal may not be reconsidered on a § 2255 motion absent changed
circumstances. Olmstead v. United States, 55 F.3d 316, 319 (7th Cir. 1995).
Therefore, three types of issues are procedurally barred in a § 2255 motion: (1) those that
were raised on direct appeal, absent a showing of changed circumstances; (2) non-constitutional

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issues that could have been but were not raised on direct appeal; and (3) constitutional issues that
were not raised on direct appeal. Belford v. United States, 975 F.2d 310, 313 (7th Cir. 1992)
(overruled on other grounds). There are exceptions to the procedural bar. First, a petitioner may
raise a procedurally barred constitutional issue if he can show that there was cause for failing to
raise the issue on appeal and that prejudice resulted therefrom. Id. ; see also Cross v. United
States, 892 F.3d 288, 294–95 (7th Cir. 2018). Meeting the cause and prejudice standard is more
difficult than establishing “plain error.” See United States v. Frady, 456 U.S. 152, 162–66
(1982). Second, he can raise a barred constitutional issue if he can show that the Court’s failure
to hear the issue would result in a fundamental miscarriage of justice—which requires an actual
showing of innocence. McCleese v. United States, 75 F.3d 1174, 1177 (7th Cir. 1996); see also
U.S. ex rel. Bell v. Pierson, 267 F.3d 544, 551–52 (7th Cir. 2001) (explaining that petitioner must
show that “it is more likely than not that no reasonable juror would have convicted him in light
of new evidence”) (citing Schlup v. Delo, 513 U.S. 298, 327 (1995) (ellipses omitted)). There is
no cause and prejudice exception for non-constitutional errors that could have been raised on
appeal but were not. Arango-Alvarez v. United States, 134 F.3d 888, 891 (7th Cir. 1998). Finally,
ineffective assistance of counsel claims may always be raised in § 2255 cases. Massaro v. United
States, 538 U.S. 500, 504 (2003).
A court may deny a § 2255 motion without an evidentiary hearing if “the motion and the
files and records of the case conclusively show that the prisoner is entitled to no relief.” 28
U.S.C. § 2255(b).

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A.

Procedurally Barred Claims
The Defendant argues that he is entitled to habeas relief because the search warrant

affidavit for his residence did not establish probable cause. He contends that there was
insufficient information presented in the affidavit to show that he was involved in drug
trafficking, or that drug activity was connected to the residence.
This claim is procedurally barred because it was addressed on direct appeal, see Sewell,
780 F.3d at 844–45, and the Defendant has not identified changed circumstances, such as new
evidence or binding caselaw. On appeal, the Seventh Circuit conducted an independent review of
the affidavit and was convinced that the “magistrate judge had a substantial basis for his
probable-cause finding.” Id. at 845. The appellate court’s review included a rejection of the
Defendant’s “backup argument” that the affidavit did not connect him and the drug activity to
the residence to be searched. Id. at 846 (holding that it was reasonable to believe that the
Defendant lived at the residence with his wife and that he operated his drug business from the
home). The court unambiguously concluded, “[f]or all these reasons, [the Defendant’s]
arguments regarding probable cause are unavailing. [The agent’s] comprehensive affidavit
established probable cause, and the magistrate judge made the correct call in issuing the warrant.
We will not disturb it on appeal.” Id. at 847. The issue of whether the search warrant was
supported by probable cause requires no further consideration.
The Defendant also challenges the Court’s drug quantity findings and the scope of the
relevant conduct relied upon at sentencing. He submits that he should have been sentenced only
on the basis of marijuana found during the execution of the search warrant. Again, the Defendant
is reiterating arguments that he presented on direct appeal and that the Seventh Circuit rejected.
Id. at 849–50 (holding that the court’s estimation that the Defendant possessed 30 to 40

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kilograms of cocaine was reasonable based on the record before it); see also United States v.
Sewell, 715 Fed. Appx. 567 (7th Cir. Mar. 22, 2018) (granting counsel’s motion to withdraw on
appeal where the Defendant’s response to counsel’s Anders Brief included a challenge to the
drug quantity calculation).
In another challenge, the Defendant claims that his constitutional rights were violated
because the movements of co-defendant Silvestre Castaneda, his cocaine and marijuana supplier,
may have been electronically tracked by law enforcement onto the Defendant’s curtilage without
first obtaining a second warrant for the Defendant’s residence. He also asserts that the
Government illegally intercepted his conversations with Castaneda, whose telephone was the
subject of a federal wiretap order, and that these communications should have been suppressed.
The Defendant’s challenges are not properly before the Court because the Defendant is
attempting to use his § 2255 motion as a substitute for direct appeal.
The Defendant does not contend that he falls within the “miscarriage of justice”
exception; he argues that the Court should consider the issues now because his counsel refused to
raise them, despite his requests to do so, and thereby rendered ineffective assistance of counsel.
Counsel’s assistance is constitutionally ineffective if it runs afoul of the standard established in
Strickland v. Washington, 466 U.S. 668 (1984), by (1) falling below an objective standard of
reasonableness and (2) prejudicing the defendant such that there is a reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding would have been different.
Id. at 692–94. An attorney is entitled to a strong presumption of competence, Id. at 689, and
review of the attorney’s actions is “highly deferential,” Harris v. Reed, 894 F.2d 871, 877 (7th
Cir. 1990).

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Counsel was not ineffective in failing to raise either of these claims regarding
Castaneda’s telephone as they would not have altered the outcome of his case. The Defendant
had no grounds to challenge privacy interests that belonged to Castaneda. If Castaneda, while
being surreptitiously monitored via wiretaps, walked onto the Defendant’s property, the privacy
interest that the Government was invading (although lawfully under the warrant) was
Castaneda’s, not the Defendant’s. See, e.g., United States v. Castetter, 865 F.3d 977, 979 (7th
Cir. 2017) (“The Constitution is not offended if, by executing a warrant to search one person
(such as [Castaneda]), police learn incriminating details about another (such as [the
Defendant]).”). Tracking Castaneda’s movements did not constitute a violation of the
Defendant’s Fourth Amendment rights, as the Defendant had no legitimate expectation of
privacy in Castaneda’s location. Id. (holding that the defendant lacked a privacy interest in the
location of a monitored individual’s vehicle.)1
Regarding intercepted conversations, the law does not require a separate finding of
necessity for each individual named (or not named) in the wiretap application as a possible
interceptee. See 18 U.S.C. § 2518; see also United States v. Marcy, 777 F. Supp. 1400, 1402
(N.D. Ill. 1991). Additionally, even an “unlawfully” intercepted communication is not subject to
suppression unless there was a “failure to satisfy any of those statutory requirements that directly
and substantially implement the congressional intention to limit the use of intercept procedures
to those situations clearly calling for the employment of this extraordinary investigative device.”
United States v. Donovan, 429 U.S. 413, 433–34 (1977) (quoting United States v. Giordano, 416

The Defendant asserted in his Reply Brief that the Government’s failure to provide him with a copy of
the warrant for Castaneda’s telephone is a violation of Brady v. Maryland, 373 U.S. 83 (1963) because it
would have been exculpatory as it concerns the curtilage of the Defendant’s home. The Defendant also
argues that the fruit of the poisonous tree doctrine grants him standing to challenge the monitoring of
Castaneda. These arguments are out of place on collateral attack. Additionally, they are without merit.
1

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U.S. 505, 527 (1974)). And the failure to identify some of the individuals likely to be intercepted
does not fall into this category. Id. at 435 (“If, after evaluating the statutorily enumerated factors
in light of the information contained in the application, the judge concludes that the wiretap order
should issue, the failure to identify additional persons who are likely to be overheard engaging in
incriminating conversations could hardly invalidate an otherwise lawful judicial authorization.”);
see also United States v. Santiago, 905 F.3d 1013, 1021 (7th Cir. 2018). In any event, the
Defendant was named as a potential interceptee on the wiretap authorization orders for
Castaneda’s telephone. The Defendant has not identified any potential grounds for the
suppression of the intercepted communications that his counsel could have successfully pursued.
The Court construes some of the Defendant’s arguments regarding the intercepted
communication as going to their relevance, as it appears that the Defendant believes he had to
first be charged with a wiretap offense before any evidence obtained from the wiretap was
introduced at trial. Not only is this a non-constitutional issue, but it misunderstands the concept
of relevance. Evidence is relevant if it has “any tendency to make a fact more or less probable
than it would be without the evidence” or “is of consequence in determining the action.” Fed. R.
Evid. 401. The Defendant was charged with maintaining a drug involved premises. The
Defendant’s conversations with his drug supplier are relevant to whether he, in fact, was
maintaining a house for the purposes of distributing or using controlled substances. The
Defendant’s arguments pertaining to the intercepted communications do not entitle him to habeas
relief.
Turning to the jury’s verdict, the Defendant asserts that the he was denied the right to a
unanimous verdict because the Court submitted a vague and ambiguous instruction for
maintaining a drug involved premises. The Defendant posits that the jury was not required to

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unanimously find that he maintained a house for purposes of distributing drugs, as opposed to
merely using them. He argues that this is because the Indictment was duplicitous, and the Court
did not give a specific unanimity jury instruction in addition to the general instruction. The
Defendant has not demonstrated cause and prejudice regarding his failure to litigate this issue on
direct appeal, and it is procedurally defaulted.
The Defendant argues that it was error for the Court not to award him good time credit at
the time of his sentencing on October 4, 2017. The Defendant did not raise this issue on a direct
appeal. As a non-constitutional issue that could have been raised on direct appeal, it is barred on
collateral review, regardless of whether the Defendant could establish cause and prejudice for the
default. See Bontkowski v. United States, 850 F.2d 306, 313 (7th Cir. 1998). In any event, the
execution of sentences and the computation of jail time is an administrative function under the
authority of the Office of the Attorney General, which has delegated this task to the Bureau of
Prisons (BOP). See United States v. Wilson, 503 U.S. 329, 334 (1992); 18 U.S.C. § 3585(b).
Sentencing courts do not calculate credit, nor do they have any authority to direct the BOP to
give a prisoner credit. See United States v. Walker, 917 F.3d 989, 990 (7th Cir. 2019).

B.

Ineffective Assistance of Counsel
Several of the Defendant’s grounds for relief are couched in terms of stand-alone claims

of ineffective assistance of counsel in violation of the Sixth Amendment.

1.

Failure to Cite to Alleyne
The Defendant argues that his trial counsel rendered ineffective assistance when he did

not advance the ruling of Alleyne v. United States, 570 U.S. 99 (2013). He asserts that, had

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counsel cited it before the district court or on direct appeal, it would have impacted the outcome
of the proceedings on the charge that he maintained a drug involved premises. The holding in
Alleyne is that any fact that increases, or triggers, a statutory mandatory minimum is an element
of the crime that must be submitted to a jury and proved beyond a reasonable doubt. 570 U.S. at
111–12. Alleyne does not affect the sentencing court’s drug quantity determination under the
advisory Sentencing Guidelines. See United States v. Valdez, 739 F.3d 1052, 1054 (7th Cir.
2014).
The Defendant urges that United States v. Abney, 812 F.3d 1079 (D.C. Cir. 2016), is
“controlling on this issue.” (Mot. 23, ECF No. 247.) It is not controlling, or applicable. In that
case, the court analyzed whether an attorney was ineffective for failing to request a continuance
of a sentencing to allow his client to possibly benefit from the Fair Sentencing Act. Abney, 812
F.3d at 1088–90. The Defendant does not otherwise explain how Alleyne is applicable to his
case.
The statutory penalties the Defendant faced at sentencing for a violation of 21 U.S.C. §
856 were never altered by an additional element; they always remained at a maximum of 20
years with no mandatory minimum. Moreover, Alleyne merely extended the holding in Apprendi
v. New Jersey, 530 U.S. 466 (2000), and his counsel cited Apprendi in a Sentencing Brief
submitted on December 17, 2012. (Sentencing Br. 1–5, ECF No. 89 (arguing that the contention
that the Defendant possessed a firearm in connection with a controlled substance offense is a fact
that must be proven beyond a reasonable doubt and determined by a jury)). The Seventh Circuit
has “repeatedly held that when a defendant is sentenced to a term of imprisonment within the
statutory maximum for the crime of which he was convicted, Apprendi is beside the point.”

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United States v. Roberts, 534 F.3d 560, 573 (7th Cir. 2008) (quoting United States v. Jones, 245
F.3d 645, 649 (7th Cir. 2001)). The same is true of Alleyne.
The Defendant’s claim of ineffective assistance fails because he has not shown that his
attorney’s failure to advance an argument based on the Supreme Court’s decision in Alleyne fell
below an objective standard of reasonableness, or that the result of the proceedings would have
been different.

2.

Concessions Regarding Drug Transactions
The Defendant asserts that his trial counsel rendered ineffective assistance of counsel

when he conceded the Defendant’s involvement in cocaine transactions, and he denies that he
met with co-defendant Castaneda four times at the Defendant’s residence. Again, the Defendant
has not shown that his attorney engaged in any conduct that fell below an objective standard of
reasonableness, or that the result of the proceedings would have been different.
In a pre-sentencing brief filed on December 17, 2012, counsel advanced the Defendant’s
position regarding the quantity of drugs, namely, that he should only be held responsible for the
drugs found in his residence at the time of the search, 1.1 grams of marijuana. (Sentencing Br. 7,
10.) This is the same argument regarding drug quantity that the Defendant advances in this
collateral attack, so it is difficult to discern what the Defendant means when he claims that his
counsel “betray[ed]” him. (Mot. 23, ECF No. 247.) Perhaps the Defendant is referencing the fact
that counsel, to support the argument for a lower drug quantity, began by noting Silvestre
Castaneda’s trial testimony and Detective Martinez’s sentencing hearing testimony as it related
to drug quantities. However, the record shows that he highlighted the testimony in an attempt to
show that the information from Castaneda was unreliable and could not be used to make a drug

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quantity calculation under the preponderance of evidence standard. The Court, in its sentencing
Opinion and Order dated December 3, 2013, understood counsel’s sentencing arguments as an
effort to undermine Castaneda’s credibility. See United States v. Sewell, 2013 WL 6237986 at
*7–8 (N.D. Ind. Dec. 3, 2013). The Court rejected the argument and found that, “based on a
preponderance of the evidence, there is sufficient indicia of reliability to credit Castaneda’s
estimate of between 30 to 40 kilograms of cocaine sold to the Defendant.” Id., 2013 WL
6237986, at *8.

3.

Tracking and Wiretap
The Defendant’s third and fourth claims of ineffective assistance center around counsel’s

failure to make the arguments regarding the tracking of Castaneda on the Defendant’s curtilage,
and the suppression of his intercepted conversations with Castaneda. For the reasons detailed
above, counsel’s decision not to challenge the wiretap of Castaneda’s telephone and the
discovery or admission of evidence obtained as a result did not fall below an objective standard
of professional reasonableness. There is no reasonable probability that but for his decision, the
results of the proceedings would have been different.

4.

Career Offender Status
The Defendant advances arguments related to his career offender status, arguing that his

counsel should have taken action to prevent the designation from being assigned to him. The
argument has no merit. The Defendant’s Guideline range was impacted by the drug quantities at
issue, and by his criminal history category, without regard to any career offender status. The
United States Sentencing Commission Guideline for a violation of 21 U.S.C. § 856(a)(1) is

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found in U.S.S.G. §§ 2D1.8 and 2D1.1. The Defendant’s criminal activity was at least 15
kilograms but less than 50 kilograms of cocaine. (The drug amounts were confirmed on appeal.)
The offense level specified in the Drug Quantity Table under U.S.S.G. §2D1.1(c)(4) sets a base
offense level of 32. After the addition of two points for possession of a dangerous weapon and
for maintaining a premises for purposes of distributing controlled substances, the offense level
from the career offender subsection was not applicable, as it was not higher than the “offense
level otherwise applicable.” U.S.S.G. § 4B1.1(b). Additionally, the Defendant’s criminal history
category was at the highest level, Level VI, without application of the career offender
designation.
The Defendant’s offenses of conviction carried statutory penalties of not more than 10
years, pursuant to 18 U.S.C. §922(g)(1), and not more than 20 years pursuant to 21 U.S.C. §
856(b). Accordingly, there were no professionally competent arguments for his counsel to make
on his behalf as it concerned the career offender designation. Had counsel made any such
objection at the sentencing stage, the Court would have been within its rights to find that a ruling
was unnecessary because it did not affect sentencing. See Fed. R. Crim. P. 32(i)(3)(B).
The Defendant asserts that counsel should have challenged the career offender
designation and his sentence on appeal. But after the Court resentenced the Defendant in light of
Johnson v. United States, 135 S. Ct. 2551 (2015), it did so on grounds that he no longer qualified
for the statutory enhancement. Additionally, the sentence represented a downward variance from
the Guidelines and was less than the statutory maximum. Indeed, the Seventh Circuit has already
agreed with the analysis of counsel, advanced through a brief in which he sought to withdraw
under Anders v. California, 386 U.S. 738 (1967), that there were no non-frivolous grounds for an

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appeal of the sentence. See United States v. Sewell, Appeal No. 17-3108 (decided on Mar. 22,
2018).

5.

Plea Agreement
The Defendant complains that his lawyer never forwarded to him a plea bargain at any

time prior to trial, and that this was deficient performance.
“[A]s a general rule, defense counsel has the duty to communicate formal offers from the
prosecution to accept a plea on terms and conditions that may be favorable to the accused.”
Missouri v. Frye, 556 U.S. 134, 145 (2012); see also Lafler v. Cooper, 556 U.S. 156, 168 (2012)
(noting that “[i]f a plea bargain has been offered, a defendant has the right to effective assistance
of counsel considering whether to accept it”). “If that right is denied, prejudice can be shown if
loss of the plea opportunity led to a trial resulting in a conviction on more serious charges or the
imposition of a more severe sentence.” Lafler, 556 U.S. at 168. But, a defendant does not have a
right to be offered a plea agreement, or to have a judge accept it. Frye, 556 U.S. at 1410.
Here, the Defendant has not presented any evidence that he informed his lawyer at any
time that he considered pleading guilty, or that he did not want to go to trial. There is nothing in
the record to suggest that the Government ever offered a plea agreement, much less one that he
would have accepted instead of proceeding to trial. Neither has the Defendant indicated that his
lawyer counseled against taking a plea or, conversely, advised him to proceed to trial. His
Motion is silent on the issue of counsel’s advice. In other words, there is nothing in the record to
suggest that the Defendant would have accepted a plea agreement absent advice he received from
his attorney. See, e.g., Coleman v. United States, 339 F. App’x 643, 645 (7th Cir. 2009) (noting
that a defendant who faults his lawyer for a breakdown in plea negotiations must establish a

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reasonable probability that, if not for counsel’s deficient advice, he would have accepted a plea
offer).

C.

Trial Transcripts and Other Documents
The Defendant has filed numerous requests for transcripts and documents related to his

case that he submits were essential to articulating his collateral attack arguments. The Court does
not agree. The Defendant’s arguments do not fail for lack of evidentiary proof, or citation to
documents in the record. They are procedurally barred or lack any basis in law, even if the facts
as alleged by the Defendant are considered true.

CERTIFCATE OF APPEALABILITY
Pursuant to Rule 11 of the Rules Governing Section 2255 Proceedings, the Court must
“issue or deny a certificate of appealability when it enters a final order adverse to the applicant.”
A certificate of appealability may be issued “only if the applicant has made a substantial showing
of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); Rule 11 of Rules Governing
Section 2255 Proceedings. The substantial showing standard is met when “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.” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quotation marks omitted); Barefoot v.
Estelle, 463 U.S. 880, 893 & n.4 (1983). Where the district court has rejected the constitutional
claim on the merits, “the showing required to satisfy § 2253(c) is straightforward: The petitioner
must demonstrate that reasonable jurists would find the district court’s assessment of the
constitutional claims debatable or wrong.” Slack, 529 U.S. at 484. A defendant is not required to

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show that he will ultimately succeed on appeal. Miller-El v. Cockrell, 537 U.S. 322, 337, 342
(2003) (stating that the question is the “debatability of the underlying constitutional claim, not
the resolution of that debate”). “Where a plain procedural bar is present and the district court is
correct to invoke it to dispose of the case, a reasonable jurist could not conclude either that the
district court erred in dismissing the petition or that the petitioner should be allowed to proceed
further.” Slack, 529 U.S. at 484.
Rule 11(a) permits a district court to direct the parties to submit arguments on whether a
certificate of appealability should issue. Additional argument is not necessary here because no
reasonable jurist could conclude that the Court’s assessment of the Sixth Amendment claims
regarding counsel’s assistance during trial and on appeal was debatable or wrong. Additionally,
no reasonable jurist could conclude that many of the Defendant’s claims were presented as a
recapitulation of or substitute for direct appeal, with no cause or prejudice to excuse the
procedural default. The Court will not issue the Defendant a certificate of appealability.

CONCLUSION
For the reasons stated above, the Court DENIES the Defendant’s Motion Under 28
U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence [ECF No. 247]. The Court declines to
issue a certificate of appealability.
SO ORDERED on April 18, 2019.
s/ Theresa L. Springmann
CHIEF JUDGE THERESA L. SPRINGMANN
UNITED STATES DISTRICT COURT

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