Tanner v. USA
Filing
1
OPINION AND ORDER The Motion to Vacate Conviction and Sentence Pursuant to 28 United States Code Section 2255, filed on October 1, 2012 is DENIED. The Clerk is ORDERED to DISMISS the civil action WITH PREJUDICE. Additionally, the Court DECLINES to issue a certificate of appealability. Signed by Judge Rudy Lozano on 10/11/13. (kjp)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
UNITED STATES OF AMERICA,
)
)
)
)
)
)
)
)
)
Plaintiff,
vs.
CHARLES TANNER,
Defendant.
NO. 2:04-CR-80
OPINION AND ORDER
This matter is before the Court on Charles’ Tanner’s Motion to
Vacate Conviction and Sentence Pursuant to 28 United States Code
Section 2255, filed on October 1, 2012. For the reasons set forth
below, this motion is DENIED.
The Clerk is ORDERED to DISMISS the
civil action WITH PREJUDICE.
Additionally, the Court DECLINES to
issue a certificate of appealability.
BACKGROUND
On October 21, 2004, Defendant, Charles Tanner (“Tanner”), was
one
of
fourteen
defendants
superseding indictment.
charged
in
a
twenty-two
count
The superseding indictment alleged Tanner
was a major player in a conspiracy to distribute large amounts of
cocaine.
guilty.
Ultimately, twelve of the fourteen defendants pled
Tanner and co-defendant Lance Foster proceeded to trial.
Trial commenced on October 30, 2006. After six days of trial,
-1-
the jury convicted Tanner on Counts 2 and 3 of the superseding
indictment and he was sentenced to life imprisonment.
Tanner
appealed the verdict and sentence, which the Seventh Circuit Court
of Appeals affirmed.
United States v. Tanner, 628 F.3d 890 (7th
Cir. 2010). The facts and procedural posture of this case are well
documented in the Seventh Circuit’s opinion, and need not be
recounted here in full.
In the instant motion, Tanner asserts his conviction and
sentence should be vacated because his trial counsel provided
constitutionally ineffective assistance of counsel at both the pretrial and trial stages.
DISCUSSION
Ineffective Assistance of Counsel
Habeas corpus relief under 28 U.S.C. section 2255 is reserved
for “extraordinary situations.”
812, 816 (7th Cir. 1996).
Prewitt v. Untied States, 83 F.3d
In order to proceed on a habeas corpus
petition pursuant to 28 U.S.C. section 2255, a federal prisoner
must show that the district court sentenced him 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.
Id.
“The Sixth Amendment entitles criminal defendants to the
‘effective assistance of counsel’— that is, representation that
-2-
does not fall below an objective standard of reasonableness in
light of prevailing professional norms.” Bobby v. Van Hook, No. 09144, 2009 WL 3712013, at *2 (Nov. 9, 2009). The governing Supreme
Court case is Strickland v. Washington, 466 U.S. 668 (1984).
To
establish
ineffective
assistance
of
counsel
under
Strickland, the Petitioner must show that counsel’s performance was
deficient and that the deficient performance prejudiced him. The
court’s review of counsel’s performance is “highly deferential,”
and the Petitioner “must overcome the presumption that, under the
circumstances, the challenged action might be considered sound
trial strategy.” Davis v. Lambert, 388 F.3d 1052, 1059 (7th Cir.
2004).
Under
the
prejudice
prong,
a
defendant
must
show
a
“reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.
A
reasonable probability is a probability sufficient to undermine
confidence in the outcome.”
Id. at 694.
Where it is expedient to do so, a court may resolve an
ineffective assistance claim based solely on the prejudice prong;
in other words, where a petitioner cannot establish prejudice,
there
is
no
need
to
consider
in
detail
whether
counsel’s
performance was constitutionally deficient. See Strickland, 466
U.S. at 697; Watson v. Anglin, 560 F.3d 687, 689-90 (7th Cir.
2009).
-3-
I.
Plea Bargaining Process
Tanner argues that his counsel was ineffective during the pre-
trial plea bargaining process, citing that his attorney: (1) failed
to review the discovery and inform Tanner that the Government had
an audio tape of Tanner’s conversations with Erbey Solis setting up
the cocaine transaction which resulted in Tanner’s arrest, and a
videotape of the sham cocaine transaction; (2) failed to advise
Tanner of any plea offer that had been extended; (3) urged Tanner
to go to trial, claiming incorrectly that the Government had no
substantive evidence to back up the claims of the Government’s
informants; and (4) failed to inform Tanner of consequences of
proceeding to trial.
Unquestionably, ineffective assistance claims apply to the
pre-trial plea bargaining process.
1399 (2012).
Missouri v. Frye, 132 S.Ct.
In Frye, the Supreme Court held that defense counsel
has a duty to communicate formal offers from the prosecution and is
considered deficient by failing to communicate written plea offers
before they expire.
Id.
This set of principles exists to allow a
court to “place the defendant in the position he would occupy had
counsel been effective.
That is, if counsel is determined to have
been effective, equities require that the defendant be put in the
same place he would have been but for counsel’s ineffective
assistance- i.e. he should be given the opportunity to accept the
never-communicated plea offer.”
United States v. Brown, 623 F.3d
-4-
104, 114 (2d Cir. 2010)(citations omitted).
Here, however, there is no evidence in the record that there
was ever a written plea agreement or that Government ever entered
into plea negotiations with Tanner or Tanner’s counsel.
Tanner
admits as much, by conceding that his trial counsel never informed
him that the Government proposed a plea deal.
(Tanner Aff. ¶ 5).
Tanner attributes the fact that he can point to no plea offer that
was made -and available for him to accept- to the ineffectiveness
of his trial attorney.
Volpe]
did
not
Tanner believes that “[e]ither [Attorney
communicate
the
government’s
willingness
to
negotiate to [] Tanner, or he did not communicate [] Tanner’s
willingness to negotiate to the government.”
(Reply, pp. 5-6).
However, this is mere speculation at this point.
evidence to that effect.
There is no
Tanner could have provided evidence from
his trial counsel or an Assistant United States Attorney involved
with the case as to whether or not plea discussions were held and
whether
those
discussions
were
conveyed
to
Mr.
Tanner.
Nevertheless, Tanner failed to produce any evidence that plea
discussions ever took place.
Because there is no evidence that the Government attempted to
enter into plea negotiations with Tanner, Tanner’s counsel cannot
be deemed ineffective with regard to plea negotiations that never
took place.
See e.g., Maddox v. United States, No. 1:08-CR-90,
2013 WL 3878736 at *7 (N.D. W.Va. July 25, 2013)(concluding that
-5-
because there was no plea agreement offered to counsel, counsel
could not be deemed ineffective for failing to communicate a plea
agreement to defendant).
II.
Counsel’s Effectiveness at Trial
Tanner devotes much of the instant motion arguing that his
trial counsel was ineffective in a number of ways during trial.
A. Conflict of Interest
To start, Tanner argues his trial counsel was ineffective per se
because counsel had an actual conflict of interest, initially
representing both Tanner and his brother, Lamont Tanner.
The
problem with Tanner’s argument is that Tanner never establishes
there was an actual conflict, or that the dual representation
affected the adequacy of representation.
Attorney Volpe did, indeed, initially represent both Tanner
and his brother Lamont Tanner. In doing so, Attorney Volpe advised
the Tanners of a possible conflict and obtained waivers from them.
(DE## 73; 147, ¶ 7).
In addition, the parties requested, and
Magistrate Judge Paul Cherry set, a Rule 44 Attorney Conflict
Hearing.
(DE# 127; 147 ¶ 8).
However, before that hearing took
place, Attorney Volpe withdrew as counsel for Lamont Tanner.
159).
(DE#
Notably, in withdrawing, Attorney Volpe insisted that he
“has been careful to avoid learning an personal information from
-6-
Lamont Tanner that would be to Mr. Tanner’s detriment. . . .”
Id.
at n.2.
Tanner provides a single legal citation - Cuyler v. Sullivan,
446 U.S. 335 (1980)- in support of his argument here.
In Cuyler,
the Court noted that “[i]n order to establish a violation of the
Sixth Amendment, a defendant who raised no objection at trial must
demonstrate that an actual conflict of interest adversely affected
his lawyer’s performance.”
Id. at 348.
Tanner has failed to
explain how there was an actual conflict or how that conflict
affected Attorney Volpe’s representation of Charles Tanner.
As
such, this argument fails.
B. Lack of Investigation
Tanner next argues that his trial counsel provided ineffective
assistance
of
counsel
by
failing
to
conduct
an
adequate
investigation of the case regarding: (1) the content of the
evidence actually in Attorney Volpe’s possession; (2) witnesses to
support Tanner’s lack of predisposition to commit a drug offense so
as to assist in presenting an entrapment defense; (3) witnesses who
could
provide
relevant
impeachment
evidence
against
the
government’s cooperating witnesses; (4) witnesses who would have
testified they were owners of the guns found in Charles Tanner’s
mother’s home on New Year’s Eve 1999, when Gary Police found a
number of weapons, at least one of which was attributed to Tanner
-7-
by Warren Moore; and (5) a witness, Mona May, who would have
testified that Tanner was with her on New Year’s Eve, 1999, and
that they did not go to Tanner’s mother’s home that night.
Regarding
correct
that
information
produced.
to
the
first
Tanner
show
three
fails
what
to
complaints,
provide
additional
the
Government
sufficiently
investigation
is
precise
would
have
While Tanner argues his trial counsel should have
investigated these matters more thoroughly, he fails to identify
who many of these witnesses are or what precisely they would say.1
At most, Tanner provides a list of witnesses he wanted counsel to
call as witnesses at trial.
(Tanner Aff. ¶ 11) But, again, Tanner
fails to establish what any of these witnesses would say or what
subject matter they would address.
The Seventh Circuit has taught
that, “[w]hen a petitioner alleges that counsel’s failure to
investigate resulted in ineffective assistance, the petitioner has
the burden of providing the court with specific information as to
what the investigation would have produced.”
United States v.
Lathrop, 634 F.3d 931, 939 (7th Cir. 2011)(citation omitted).
Thus, to succeed on this claim, Tanner must provide “the court
sufficiently precise information, that is, a comprehensive showing
as to what the investigation would have produced.”
Hardamon v.
United States, 319 F.3d 943, 951 (7th Cir. 2003). Tanner must also
1
Notably, Tanner relies on the prepared Affidavit of Attorney Visvaldis
Kupsis to help establish that Attorney Volpe was unprepared. However, that
Affidavit of Attorney Kupsis is unsigned and thus not helpful.
-8-
establish prejudice due to any lack of investigation.
That is to
say, Tanner must establish a “reasonable probability” that his
counsel’s failures affected the trial’s outcome.
States, 256 F.3d 592, 599 (7th Cir. 2001).
Bruce v. United
Because Tanner failed
to meet his burden of providing the required specifics, his first
three failure to investigate claims must fail.
The other two failure to investigate claims are centered
around a 1999 New Year’s Eve Party, where guns were found, one of
which was linked to Tanner. The gun evidence, Tanner suggests, was
used at trial to “date the beginning of his participation in his
brothers’ drug conspiracy” and “make the jury believe that Charles
Tanner was a dangerous person.”
that
if
his
trial
counsel
(Reply, p. 13).
would
have
performed
Tanner argues
a
thorough
investigation, he could have presented witnesses at trial to
testify that they owned the guns that were at the party and that
Tanner was not at the party.
This evidence, Tanner argues, would
have countered the government’s contention that Tanner was involved
in a drug conspiracy beginning in late 1999 or early 2000.
However, Tanner’s desired evidence is immaterial to the jury
verdict.
As
the
Seventh
Circuit
acknowledged,
even
without
testimony about the 1999 New Year’s Eve party, “the jury would
still have learned that Tanner had possessed and used firearms” and
that “Tanner had possessed firearms during the period when he dealt
drugs.”
Tanner, 628 F.3d at 902.
-9-
Thus, there is no demonstrated
prejudice and this claim is without merit.
1. Failure to Present Entrapment Defense
Tanner also alleges that his trial counsel was ineffective for
not investigating and presenting an entrapment defense.
“A valid
entrapment defense requires proof of two related elements: (1)
government inducement of a crime, and (2) lack of predisposition on
the part of the defendant to engage in criminal conduct.”
United
States v. King, 75 F.3d 1217, 1223 (7th Cir. 1996)(citations
omitted).
At trial, Tanner’s counsel did not present any evidence
regarding Tanner’s lack of disposition to engage in criminal
conduct. Tanner argues that this was in error because “[he] had no
criminal history of involvement with drugs, did not use drugs, and
had a successful boxing career to supply his financial needs.”
(DE# 909, p. 14).
He requests a hearing to “present witnesses he
has identified and elicit testimony from them that is consistent
with the entrapment defense, his lack of participation in or
responsibility for the 1999 New Year’s Eve party from which guns
were seized, and his lack of predisposition to deal drugs.”
(DE#
909, p. 15).
In Tanner’s affidavit, he identified a list of 13 witnesses he
wanted to call at trial. (Tanner Aff. ¶ 11).
Again, though,
Tanner’s affidavit fails to indicate what testimony each of these
-10-
witnesses would provide.
This is not specific enough information
to succeed on this claim.
Lathrop, 634 F.3d at 939; United States
v. Herrera-Rivera, 25 F.3d 491, 497 (7th Cir. 1994).
Even assuming that any or all of the 13 identified witnesses
would testify in a manner consistent with Tanner’s memorandum2, the
entrapment defense would still have failed.
The facts that Tanner
was a boxer since a young age and maintained a rigorous training
schedule, fail to establish that Tanner was not predisposed to drug
dealing.
To
the
contrary,
Warren
Moore
provided
testimony regarding Tanner’s drug dealing activity.
extensive
And Tanner,
himself, made statements to Special Agent Allen where he identified
several individuals who provided him with cocaine and described
several of his prior drug deals. Simply put, the evidence at trial
overwhelmingly established that Tanner was predisposed to dealing
drugs.
The additional evidence Tanner wants to introduce (which,
again, was not specified in the affidavits) would not change that.
2. Counsel’s Preparedness for Trial
Tanner next argues that his counsel was constitutionally
ineffective because he was unprepared for trial and failed to
investigate many aspects of the case.
As explained earlier, to
succeed on this type of claim Tanner must provide a detailed
2
While Tanner’s current counsel argues these witnesses would testify
regarding Tanner’s lack of predisposition, Tanner’s affidavit is silent as to
what testimony these witnesses would provide.
-11-
showing as to what the desired investigation would have produced,
Hardamon, 319 F.3d at 951, and then establish a “reasonable
probability” that his counsel’s failures affected the trial’s
outcome.
Bruce, 256 F.3d at 599.
Tanner complains that trial counsel failed to file pre-trial
motions, failed to be prepared to cross examine witnesses, failed
to file a motion to exclude firearms evidence, failed to object to
witness Warren Moore conferring with his lawyer at a break, failed
to object during Gary Police officers’ testimony about 1999 New
Year’s Eve party, failed to cross examine Warren Moore regarding
the murder of his girlfriend, failed to submit an entrapment jury
instruction, failed to object to the given “ostrich” instruction,
and failed to request a Sears instruction.
Not only does Tanner
complain of each of these points in isolation, but he further
argues that the cumulative effect of trial counsel’s errors is
tantamount to ineffective assistance of counsel.
3. Failure to file pre-trial motions
Tanner complains that his trial counsel failed to file his own
challenge to the Government’s Santiago proffer, failed to file any
motions in limine, and failed to timely complete objections. It is
true that trial counsel did not always make his own objections.
However, as Tanner acknowledges, “the Court made it clear that an
objection made by one counsel was adopted by the other, unless the
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other opted out . . ..”
(DE# 895, p. 19).
Thus, any objection
made by co-defendant Foster was also deemed made by Tanner.
co-defendant
Foster
did
file
objections
to
the
And,
Government’s
Santiago Proffer.
Counsel’s failure to file certain pre-trial motions in itself
cannot establish ineffective assistance. Instead, Tanner must show
that
counsel’s
failures
were
unreasonable
and
prejudicial.
Although Tanner complains that his counsel did not file certain
pre-trial motions, Tanner has failed to specify what motions his
counsel should have filed, explained how any of those motions would
have been successful, or shown that the verdict would have been
altered.
As such, Tanner has failed to show that his counsel’s
failure to file pre-trial motions caused him any prejudice.
4. Failure to prepare to cross-examine witnesses
On the first day of trial, Tanner’s co-defendant, Lance
Foster, filed a motion in limine directed at the Government’s
firearms evidence.
To avoid delaying the trial and to also allow
the Court time to properly consider the motion, the Court inquired
about available witnesses.
order of witnesses.
The Government offered to change the
Tanner’s trial counsel responded that he had
relied upon the Government’s intended order of witnesses and was
not prepared to cross-examine the newly ordered witnesses.
While Tanner asserts this is a basis for an ineffective
-13-
assistance of counsel claim, Tanner fails to mention that the Court
ended
up
ruling
commencement
of
on
Foster’s
testimony
motion
and
original order of witnesses.
the
in
limine
Government
prior
to
the
reinstated
its
Thus, there was no change in the
order of witnesses and no resulting prejudice to Tanner.
Thus,
this claim is without merit.
5. Failure to file motion to exclude firearms evidence
Tanner complains that his attorney did not file a motion to
exclude the firearms testimony relating to the 1999 New Year’s Eve
Party.
However, that motion was filed by Lance Foster’s attorney,
and was deemed joined by Tanner.
Nevertheless, that motion was
denied by this Court at trial and this Court allowed that evidence
to be admitted.
On appeal, though, the Seventh Circuit found the
testimony should have been found inadmissible, but ruled that its
admission was harmless.
Tanner has failed to articulate what prejudice he suffered
based on his trial attorney’s failure to file a motion to exclude
firearms
evidence.
Nor
can
this
Court
see
any,
especially
considering co-defendant Foster filed an unsuccessful motion to
exclude the firearms evidence and because the Seventh Circuit found
the admission of any such evidence to be harmless.
these reasons, this argument fails.
-14-
For both of
6. Failure to object to witness conferring with counsel
During a break in the direct examination of Warren Moore,
Tanner’s trial counsel observed Warren Moore conferring with his
lawyer. Tanner’s counsel did not object or bring it to the Court’s
attention until later in the day.
When Tanner’s counsel brought this issue to the Court’s
attention, the Court gave Tanner’s counsel an opportunity to find
legal authority to prohibit Moore from conferring with his attorney
during his testimony.
Although Tanner’s counsel did not find any
applicable law, the Court did.
The Court found and applied Perry
v. Leeke, 488 U.S. 272, 282 (1989) and prohibited Moore from
conferring with his attorney during his testimony.
Tanner now complains that his trial counsel’s inability to
find the Perry decision “reveals a stunning lack of preparation.”
(DE# 895, p. 25).
However, in light of this Court’s actions of
finding and applying
Perry, Tanner fails to explain how his
counsel’s actions caused him any prejudice.
7. Cross-examination about interview of Tanner
Tanner argues that his trial counsel was ineffective regarding
his cross-examination of Special Agent Allen.
During cross-
examination, Tanner’s trial counsel attempted to elicit testimony
from the agent that the agent had an authorized meeting with
Tanner; that is, the meeting was not authorized by the assistant
-15-
United States Attorney.
At the time, this Court told Tanner’s
trial counsel that getting into the subject of an unauthorized
meeting on cross examination of Agent Allen should have been raised
by way of pre-trial motion, rather than in cross examination.
What Tanner fails to mention, however, is that after a sidebar
conference, the Court ruled that Tanner’s counsel could go into
that area on cross-examination.
Trial counsel did conduct cross-
examination on the subject and, as such, Tanner can demonstrate no
prejudice.
8. Failure to object to Gary Police Officers’ testimony
Tanner complains that his trial counsel did not object to any
of the Gary Police officers’ testimony regarding the 1999 New
Years’ Eve party that was subsequently deemed by the Seventh
Circuit to have been erroneously admitted at trial.
F.3d at 901.
Tanner, 628
However, the Seventh Circuit went on to explain that
the admission of this evidence was harmless.
Id. at 902-03.
As
such, there can be no prejudice established.
9. Failure to fully cross-examine Warren Moore
Tanner’s next complaint centers around his trial counsel’s
failure to cross-examine Warren Moore about specifics regarding the
murder and investigation of Moore’s former girlfriend.
After the close of the first day of trial, the Court held a
-16-
brief voir dire of Government witness Warren Moore to determine
whether he had been promised any benefit with respect to the
investigation into the murder of his child’s mother. Specifically,
the Court stated, “[y]ou want to find out whether or not there was
any kind of benefits that were given along that line.
the area that I want to confine it to.”
So that’s
(Tr. Vol. I, p. 309).
During the voir dire, trial counsel did not get into the specifics
of Moore’s actions on the night of his former girlfriend’s murder.
However, he was not allowed to either during the voir dire or on
cross examination.
(DE# 404).
Thus, trial counsel did not get
into topics that this Court told him not to get into.
As such,
there can be no ineffective claim.
10. Failure to submit entrapment jury instruction
Tanner makes much of his trial counsel’s failure to submit an
entrapment instruction.
induces
a
person
to
“Entrapment occurs when the government
commit
an
offense
and
predisposition to do so without the inducement.”
Bey,
__
F.3d
2013)(citations
instruction
to
__,
2013
WL
omitted).
a
jury,
a
3455695
Thus,
defendant
at
to
*1
(7th
be
lacked
the
United States v.
present
must
h
Cir.
an
able
July
9,
entrapment
to
proffer
sufficient evidence of both inducement and lack of predisposition.
United States v. Plowman, 700 F.3d 1052 (7th Cir. 2012).
As already explained, the evidence failed to show a lack of
-17-
predisposition on the part of Tanner.
Thus, even if his trial
counsel would have submitted an entrapment instruction, it would
have been rejected and not presented to the jury. Therefore, there
was no resulting prejudice from trial counsel’s failure to submit
an entrapment instruction.
11. Failure to object to “ostrich” instruction
Tanner submits that his trial counsel erred in failing to
object to the giving of an “ostrich” jury instruction.
This Court
gave that instruction to the jury, which the Seventh Circuit
determined was given in error.
Tanner, 628 F.3d at 905.
However,
what Tanner fails to acknowledge is that the Seventh Circuit held
that, “even though the ostrich instruction was given in error,
Tanner cannot establish that he was harmed by that error.”
Id.
This is because, “[t]here is no reason to believe that the jury
convicted Tanner on evidence showing only an innocent or negligent
receipt of illegal drugs.”
Id.
Accordingly, there can be no
resulting prejudice from counsel’s failure to object to the ostrich
instruction.
12. Failure to request Sears instruction
Lastly, Tanner argues that his trial counsel was ineffective
for failing to request a Sears instruction.
A Sears instruction
“informs the jury that a defendant’s agreement with a government
-18-
agent cannot support a charge of criminal conspiracy.” Id. at 906.
The Seventh Circuit found that since Solis and Moore were both
named as co-conspirators and since both, for a limited time, worked
as Government cooperators, it was theoretically “possible for the
jury to convict Tanner erroneously for conspiring with either Moore
or Solis while they were government informants.”
Id.
However,
based on the evidence that Tanner conspired with Moore and Solis
for extended periods of time, the Seventh Circuit found that there
was only a “remote possibility” that this instruction would have
altered the outcome of the case.
A remote possibility is not a
“reasonable probability,” which is required to establish prejudice
under Strickland.
As such, this Court finds habeas relief is not
warranted based on trial counsel’s failure to request the Sears
instruction.
III. Cumulative effect
Although this Court has determined that each of Tanner’s
individual claims against his trial counsel is insufficient to
establish ineffective assistance of counsel, Tanner argues that the
cumulative
effect
of
his
trial
counsel’s
errors
meets
the
Strickland standard for ineffective assistance of counsel. Indeed,
it is possible for a court to find that the cumulative effect of
trial counsel’s individual acts was substantial enough to establish
ineffective assistance of counsel. Williams v. Washington, 59 F.3d
-19-
673, 682 (7th Cir. 1995).
The problem here is that Tanner does not explain how the
cumulative effect of trial counsel’s complained of acts so infected
the jury’s deliberation that they denied Tanner a fundamentally
fair trial.
This is problematic because, in this Court’s view,
the effect of trial counsel’s perceived shortcomings were not so
substantial as to create a reasonable probability that the outcome
would have been different. As the Seventh Circuit noted, and this
Court reaffirms, the evidence against Tanner was overwhelming that
he was a member of a drug conspiracy and intended to obtain a large
amount of cocaine from Solis the night he was arrested.
There is
no reasonable probability that changing any or all of trial
counsel’s perceived shortcomings would have altered the jury’s
verdict.
Certificate of Appealability
Pursuant to Rule 11 of the Rules Governing Section 2255
Proceedings, a district court must “issue or deny a certificate of
appealability
applicant.”
when
it
enters
a
final
order
adverse
to
the
A certificate of appealability may issue only if the
applicant “has made a substantial showing of the denial of a
constitutional right.”
28 U.S.C. § 2253(c)(2).
To make such a
showing, a defendant must show that “reasonable jurists could
debate whether (or, for that matter, agree that) the motion should
-20-
have been resolved in a different manner or that the issues
presented
were
further.”
adequate
to
deserve
encouragement
to
proceed
Slack v. McDaniel, 529 U.S. 473, 484 (U.S. 2000)
(internal quotation marks and citation omitted).
For the reasons set forth above, Tanner has not stated any
grounds for relief under section 2255.
for
a
determination
decision
debatable
that
or
reasonable
incorrect
encouragement to proceed further.
or
The Court finds no basis
jurists
that
would
the
find
issues
this
deserve
Therefore, a certificate of
appealability will not be issued.
CONCLUSION
For the reasons set forth above, this motion is DENIED.
The
Clerk is ORDERED to DISMISS the civil action WITH PREJUDICE.
Additionally,
the
Court
DECLINES
to
issue
a
certificate
appealability.
DATED:
October 11, 2013
/s/RUDY LOZANO, Judge
United States District Court
-21-
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