Weir v. USA
Filing
1
MEMORANDUM OPINION AND ORDER:1. Defendant Joseph Weirs motion for appointment of counsel 151 is DENIED. 2. The Report and Recommendation of Magistrate Judge Robert E. Wier 166 is ADOPTED and INCORPORATED herein by referenc e. 3. Weirs motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255 151 is DENIED, and this matter is DISMISSED, with prejudice, and STRICKEN from the Courts docket. 4. A Certificate of Appealability shall not issue with respect to any matter or claim raised in this proceeding 5. A Judgment in favor of the United States shall issue this date. Signed by Judge Danny C. Reeves on 07/15/2016.(KRB)cc: COR, Joseph Weir via US Mail
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
NORTHERN DIVISION
(at Covington)
UNITED STATES OF AMERICA,
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Plaintiff,
V.
JOSEPH A. WEIR,
Defendant.
Criminal Action No. 2: 12-13-DCR
and
Civil Action No. 2: 16-38-DCR
MEMORANDUM OPINION
AND ORDER
*** *** *** ***
Defendant Joseph Weir1 has moved to vacate, set aside, or correct his sentence under
28 U.S.C. § 2255. [Record No. 151] In accordance with 28 U.S.C. § 636(b)(1)(B), the
motion was referred to a United States Magistrate Judge for issuance of a report and
recommendation. On June 24, 2016, Magistrate Judge Robert E. Wier issued his report,
recommending that the motion be denied. [Record No. 166] Additionally, the Magistrate
Judge recommended that a Certificate of Appealability not be issued. [Id.] Neither Weir
nor the United States has filed objections to the Recommended Disposition.
I.
While this Court conducts a de novo review of those portions of a magistrate judge’s
recommendations to which an objection is made, 28 U.S.C. § 636(b)(1)(C), “[i]t does not
appear that Congress intended to require district court review of a magistrate’s factual or
legal conclusions, under a de novo or any other standard, when neither party objects to
1
There is no familial or other relationship between the defendant and the United States
Magistrate Judge assigned to this matter.
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those findings.” Thomas v. Arn, 474 U.S. 140, 150 (1985). Moreover, a party who fails to
file objections to the magistrate judge’s findings of fact and recommendations waives the
right to appeal. See United States v. Branch, 537 F.3d 582, 587 (6th Cir. 2008); Wright v.
Holbrook, 794 F.2d 1152, 1154−55 (6th Cir. 1986).
Weir did not file objections to the Report and Recommendation and the time to do
so has expired. Nevertheless, the Court has reviewed the record de novo. After fully
considering the record, the Court agrees with the Magistrate Judge’s analysis and
conclusions. Thus, it will deny Weir’s motion to vacate his sentence and decline to issue
a Certificate of Appealability.
II.
On March 8, 2012, Weir was indicted for interstate kidnapping, which occurred on
May 31, 2011, and armed bank robbery, which occurred on December 5, 2011. [Record
No. 1, pp. 1−2] The kidnapping, addressed by 18 U.S.C. § 1201(a)(1), involved a charge
under 18 U.S.C. § 924(c)(1) because Weir brandished a firearm in furtherance of the
offense. [Id.] The bank robbery, addressed by 18 U.S.C. § 2113(a) and (d), also involved
a § 924(c)(1) charge for possessing a firearm in furtherance of the offense. [Id., p. 2] Due
to a defense motion, a competency hearing was held on September 12, 2012, and the
defendant was found competent to stand trial. [Record Nos. 13; 41; 58] Next, Weir filed
a motion to suppress a statement he gave to law enforcement during an interview conducted
on February 5, 2012. [Record No. 47] That motion was denied. [Record No. 67]
Due to a defense motion, the Court conducted separate jury trials for the two sets of
charges. [Record Nos. 43; 66] At both trials, the jury convicted Weir of all counts.
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[Record Nos. 87; 113] A sentencing hearing was held on April 29, 2013, and the defendant
was sentenced to a 711-month term of imprisonment, followed by five years of supervised
release. [Record Nos. 122; 124] On appeal, the United States Court of Appeals for the
Sixth Circuit affirmed. United States v. Weir, 587 F. App’x 300, 310 (6th Cir. 2014). The
United States Supreme Court denied to issue a writ of certiorari. Weir v. United States,
135 S. Ct. 1455 (2015).
III.
In seeking relief under 28 U.S.C. § 2255, a defendant may assert that: the sentence
was imposed in violation of the United States Constitution or federal law; the Court lacked
jurisdiction; his or her sentence exceeded the maximum penalty authorized by law; or the
sentence is otherwise subject to collateral attack. 28 U.S.C. § 2255(a). To prevail on a
claim of constitutional error, a defendant must establish an error of constitutional
magnitude that had a substantial and injurious effect or impact on the proceedings. Watson
v. United States, 165 F.3d 486, 488 (6th Cir. 1999). Additionally, to prevail on a claim of
nonconstitutional error, the defendant must show a “‘fundamental defect which inherently
results in a complete miscarriage of justice, or, an error so egregious that it amounts to a
violation of due process.’” Id. (quoting United States v. Ferguson, 918 F. 3d 627, 630 (6th
Cir. 1990)) (internal quotation marks omitted).
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IV.
On February 22, 2016, Weir filed the present motion under 28 U.S.C. § 2255,
asserting four ineffective assistance of counsel claims, as well as a cumulative error claim.2
[Record No. 151, pp. 4−9] The United States responded, but Weir did not file a reply.
[Record No. 163] As an initial matter, the Court notes that Weir submitted a letter stating
that he was unable to rebut the United States’ argument because he was “impeded” from
obtaining his legal property while in transit or in the Special Housing Unit. [Record No.
167] However, Weir never mentioned in his two motions to supplement the pending §
2255 petition that he was allegedly prevented from accessing legal documents.3 [See
Record Nos. 161; 164.] Further, those supplemental motions, which he submitted both
before and after the United States filed its response in opposition to the § 2255 petition,
suggest that the defendant did, in fact, have access to his legal property, as he outlined
several viable legal arguments in them. [See id.]
2
Weir also requests appointment of counsel. [Record No. 151, p. 13] The United States
Constitution does not provide a right to counsel in habeas proceedings. See Abdus-Samad v. Bell,
420 F.3d 614, 632 (6th Cir. 2005). However, the Court may appoint counsel in such proceedings.
See 28 U.S.C. § 2255(g). When “the court determines that the interests of justice so require,
representation may be provided for any financially eligible person who . . . is seeking relief under
section . . . 2255.” 18 U.S.C. § 3006A(a)(2)(B). But “[t]he decision to appoint counsel for a
federal habeas petitioner is within the discretion of the court and is required only where the
interests of justice or due process so require.” Mira v. Marshall, 806 F.2d 636, 638 (6th Cir. 1986).
Here, the record and the parties’ arguments are adequate for determining the issues presented.
Thus, appointment of counsel would be unnecessary and a waste of resources.
3
The defendant explained in his original habeas petition that he did not have access to his
documents [Record No. 151, p. 12]; however, his failure to re-assert such an issue in his
supplemental motions tends to indicate that he later obtained access to such documents. Because
the Court permitted Weir to file his first supplemental motion, he was able to overcome any
impediment occurring during the filing of the habeas petition. [Record No. 162]
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Although Weir asserts that he did not receive notifications regarding his pending
motion through the mail, the record only suggests that mail was “undelivered” on March
29, 2016, and April 6, 2016. [Record Nos. 158; 160] On March 30, 2016, the Clerk of
Court forwarded the Court’s amended briefing schedule to Weir at his new address, and
the record does not reflect any problem with that address.4 [Record No. 159] Because the
United States did not file its response until 19 days later, Weir had ample time in which to
file his reply, which was due thirty days after the response. [See Record Nos. 157; 163]
Because the record contradicts Weir’s allegations regarding the mail and his lack of access
to legal materials, it is appropriate to now address the ripe motion to vacate, regardless of
Weir’s failure to reply to the United States’ contentions.5 See, e.g., Williams v. Brunsman,
No. 1:08-CV-00136, 2009 WL 816265, *6 (S.D. Ohio Mar. 26, 2009) (“The record
otherwise fails to support petitioner’s contention that his inadequate or limited access to
the law library prevented him from timely filing his habeas petition.”).
With that matter resolved, the Court returns to Weir’s pending habeas motion. First,
he argues that his trial counsel failed to adequately litigate the issue regarding suppression
of his February 5, 2012 statements to law enforcement. [Record No. 151, p. 4] Second,
Weir asserts that his counsel did not request certain jury instructions and challenge certain
4
In any event, it was Weir’s responsibility to update his address. See, e.g., Evans v. Metrish,
No. 06-CV-13660, 2008 WL 3200002, *1 (E.D. Mich. Aug. 6, 2008).
5
Weir also alleges in his letter that he was not notified of any “ruling or opi[ni]on set forth
against” his motion. [Record No. 167] The defendant appears to be referring to the Recommended
Disposition because the Court had not issued anything else resembling a ruling on the pending
habeas motion. Because Weir appears to have received notification of the Recommended
Disposition as of June 27, 2016 [Record No. 167-1], he had sufficient time to submit objections to
it.
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jurors’ qualifications. [Id., pp. 5−6] Third, the defendant makes a cumulative error
argument couched as an ineffective assistance of counsel claim. [Id., p. 7] Fourth, he
contends that his counsel failed to present certain offender characteristics at sentencing.
[Id., pp. 8−9]
A.
Ineffective Assistance of Counsel
Ineffective assistance of counsel is a mixed question of law and fact that is reviewed
under the test established in Strickland v. Washington, 466 U.S. 668 (1984). It requires
that a defendant show: (i) counsel’s performance was deficient by falling “below an
objective standard of reasonableness,” id. at 688; and (ii) the defendant was “prejudiced”
by such deficient performance. Id. at 687. To determine deficient performance, the court
must “conduct an objective review of [counsel’s] performance, measured for
‘reasonableness under prevailing professional norms,’ which includes a context-dependent
consideration of the challenged conduct as seen ‘from counsel’s perspective at the time.’”
Wiggins v. Smith, 539 U.S. 510, 523 (2003) (quoting Strickland, 466 U.S. at 688–89)
(internal citation omitted); Poindexter v. Mitchell, 454 F.3d 564, 577 (6th Cir. 2006). This
review requires consideration of the norms of practice as reflected in the American Bar
Association Standards for Criminal Justice. See Rompilla v. Beard, 545 U.S. 374, 387
(2005).
To establish prejudice, “[t]he defendant must demonstrate that there is 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.” Strickland, 466 U.S. at 694. More specifically, the Sixth
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Circuit has held “that a petitioner need not prove by a preponderance of the evidence that
the result would have been different, but merely that there is a reasonable probability that
the result would have been different.” Skaggs v. Parker, 235 F.3d 261, 271 (6th Cir. 2000).
With regard to errors at trial, the defendant must establish that, had the jury been
confronted with [the] mitigating evidence, there is a reasonable probability that it would
have returned with a different sentence.” Wiggins, 539 U.S. at 536. And with respect to
errors at the sentencing hearing, the defendant must establish that his “sentence was
increased by the deficient performance of his attorney.” Spencer v. Booker, 254 F. App’x
520, 525 (6th Cir. 2007) (citing Glover v. United States, 531 U.S. 198, 200 (2001)).
1.
Suppression Issue
Weir argues that trial counsel Steven Howe failed to appropriately present the
suppression issue to the Court by failing to investigate and/or argue: (i) Weir’s drug abuse
and mental health history; (ii) Weir’s habit of invoking his rights under Miranda v. Arizona,
384 U.S. 436 (1966); and (iii) that Weir’s post-Miranda statements were involuntary.
[Record No. 151, p. 4] The Magistrate Judge concluded that Weir is barred from raising
these arguments to the extent that they were litigated and rejected on appeal. See Weir,
587 F. App’x at 303−05. [Record No. 166, p. 6] The Court agrees. See Myers v. United
States, 198 F.3d 615, 619 (6th Cir. 1999). The defendant has not demonstrated “highly
exceptional circumstances, such as an intervening change in law,” that would permit him
to re-litigate the issue in the present habeas motion. See DuPont v. United States, 76 F.3d
108, 110 (6th Cir. 1996) (quoting Giraldo v. United States, 54 F.3d 776 (table), 1995 WL
290354, *2 (6th Cir.), cert. denied, 516 U.S. 892 (1995)).
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The Court also agrees with the Magistrate Judge that the arguments fail on the
merits. [Record No. 166, p. 6] Through the competency determination, Weir’s first
counsel, Dennis Alerding, alerted the Court to Weir’s bipolar disorder, ADHD, depression,
and other “mental disorders,” in addition to his hospitalizations and medical records.
[Record No. 13] Attorney Howe then represented Weir at the competency hearing and
submitted post-hearing supplemental information regarding Weir’s educational
background. [Record Nos. 37; 58] Next, Howe filed a motion to suppress, drawing
attention to several of the aspects of the February 5, 2012, interview that Weir finds
problematic, such as his admission regarding “smoking weed” and taking prescription pills,
as well as his vomiting and wiping sweat. [See, e.g., Record No. 47, pp. 5−6.] The motion
to suppress also addressed other aspects of Weir’s mental health and challenged the
voluntariness of the confession on these bases. [Id., p. 9]
In ruling on the motion, the Court referenced its thorough evaluation of Weir’s
mental health conditions and substance abuse, concluding that Weir’s statements were
voluntary, knowing, and intelligent. [Record No. 67, pp. 7−9] And at trial, Howe
presented ample evidence concerning Weir’s lack of sobriety. [Record No. 163-1, pp. 1−2]
Under prevailing professional norms, Weir’s representation was clearly not deficient with
respect to those issues. See Wiggins, 539 U.S. at 523.
Regarding Weir’s alleged habit of refusing to talk to police, Howe presented such a
contention to the Court in his brief. [Record No. 47, pp. 1, 8] Further, Weir’s in-court
testimony at the evidentiary hearing also revealed that alleged habit; therefore, the
allegation was considered in addressing the motion to suppress. [Record Nos. 67, pp. 2, 7;
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71, p. 42] As a result, the record demonstrates that Howe’s performance was not deficient
regarding that matter. See Wiggins, 539 U.S. at 523.
Although Weir lists numerous other possible facts counsel could have addressed in
his motions and arguments to the Court, the record indicates that counsel’s performance
was adequate by all appropriate standards. [See, e.g., Record No. 151-2, pp. 2−3.]
Moreover, even if counsel’s failure to address certain mitigating evidence constituted
deficient performance, Weir has not explained how such errors signify a reasonable
probability that the result of the proceeding regarding suppression or the trial would have
been different. See Strickland, 466 U.S. at 694; Jackson v. McQuiggin, 553 F. App’x 575,
583-84 (6th Cir. 2014) (concluding that, even if counsel’s performance was deficient,
sufficient circumstantial evidence allowed the jury to find beyond a reasonable doubt that
defendant was guilty); Flick v. Warren, 465 F. App’x 461, 464-65 (6th Cir. 2012). For
example, while Weir argues that counsel should have requested a second psychological
examination, he does not present information regarding what that examination would have
revealed. [Record No. 161, p. 5]
2.
Jury Instructions and Juror Qualifications
The defendant also contends that counsel was ineffective for failing to request
certain jury instructions regarding his confession and for failing to resolve issues involving
two jurors’ familiarity with the victim. [Record No. 151, pp. 5−6] The Magistrate Judge
first noted that the contentions underlying these ineffective assistance claims were
addressed on appeal, meaning Weir is barred from re-litigating them in the present motion.
See Myers, 198 F.3d at 619. [Record No. 166, p. 12] Next, the Magistrate Judge concluded
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that counsel’s performance was not deficient with regard to these issues and that no
prejudice resulted from Howe’s actions. [Id., p. 14] Again, the Court agrees for the reasons
outlined below.
Regarding the instruction issue, the Court gave the instruction sought by Weir at
both trials—Sixth Circuit Pattern Instruction 7.17 concerning transcriptions of tape
recordings. [Record Nos. 151-1, p. 4; 85, p. 22; 112, p. 26] Further, as noted by the Sixth
Circuit, the Court also instructed the jury that that “[y]ou may not convict the Defendant
based solely upon his uncorroborated statement or admission” at the bank robbery trial.
[Record No. 112, p. 27] In short, the record contradicts Weir’s factual allegations and he
fails to demonstrate deficient performance or prejudice on this issue. See Strickland, 466
U.S. at 694.
During the first trial, two jurors informed the Court of their association with the
victim—Juror #340’s brother-in-law’s brother’s wife (since divorced) was the victim’s
daughter, and Juror #342 worked with the victim’s daughter thirty years prior to the trial.6
[Record Nos. 128, p. 48] Attorney Howe moved for a mistrial. Thereafter, the Court and
counsel for the defendant and the government further questioned the jurors. [Id.] Juror
#340 indicated that her relationship to the victim’s daughter would not affect her ability to
6
Mr. Howe:
And considering the fact that there is a relationship that at least existed at
one point in time, would there be a bias on behalf of the government’s proof at this point in time
by virtue of the fact that you know LeAnn [i.e., the victim’s daughter] and knew the family, things
along those lines?
Juror No. 340: No, there wouldn’t.
[Record No. 128, p. 55]
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be fair and impartial, but Juror #342 stated that it might. [Id., pp. 49−54] The Court denied
the motion for a mistrial but excused Juror #342. [Id., p. 57] Upon renewal of the motion
for a mistrial, the Court again denied the motion. [Record No. 130, pp. 27, 31]
Weir’s counsel performed adequately by moving twice for a mistrial. See Wiggins,
539 U.S. at 523. Further, Weir experienced no prejudice regarding Juror #342 due to her
removal. Based on the voir dire process and the tenuous nature of Juror #340’s connection
to the victim, there is no reason to conclude that the defendant was prejudiced by her
presence as a juror. See United States v. Tab, 259 F. App’x 684, 692 (6th Cir. 2007). To
the extent Weir contends that the two jurors tainted the jury, the Court gave the proper
curative instructions and may properly assume that the jurors followed the instructions,
absent evidence to the contrary. See Shannon v. United States, 114 S. Ct. 2419, 2427
(1994). [Record No. 128, pp. 52, 55 60] Consequently, the Court agrees with the
Magistrate Judge that Weir was not prejudiced by any alleged deficiency in counsel’s
performance with regard to this issue. [Record No. 166, p. 13]
3.
Cumulative Error
Weir subsequently asserts a cumulative error claim, attacking the sufficiency of the
evidence and Howe’s overall performance. [Record No. 151, p. 7] Again, however, Weir
is barred from challenging the sufficiency of the evidence because the Sixth Circuit already
addressed and rejected this claim. See Weir, 587 F. App’x at 306−08.
Weir first makes vague allegations regarding counsel’s failure to examine witnesses
or present a defense.
[Id.]
However, counsel cross-examined all witnesses, called
witnesses, had Weir testify at the first trial, and introduced a video of the confession at the
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second trial. [Record Nos. 99; 132, p. 64; 166, p. 15] Thus, the record contradicts this
factual allegations.
The defendant also alleges that the victim who identified him during the first trial
had misidentified him during a photograph array prior to the trial. [Record No. 151, p. 7]
However, the record reflects that, during cross-examination, the victim acknowledged the
misidentification the day following her abduction by the defendant. [Record No. 128, pp.
36-37]7 With regard to Weir’s contentions about the nonexistence of certain types of
evidence (e.g., fingerprint and DNA evidence), the Magistrate Judge properly concluded
that substantial other evidence, both circumstantial and direct, supported both jury verdicts.
See, e.g., Lint, 542 F. App’x at 479; United States v. Noland, Nos. 5:09-176-DCR, 5:147352-DCR, 2015 WL 3819958, at *5 (E.D. Ky. Jun. 18, 2015). [Record No. 166, p. 16]
For instance, Weir takes issue with the evidence relating to the § 924(c)(1) convictions at
both trials because no firearms were recovered. [Record No. 151, p. 7] But the Court noted
during the first trial that both the victim’s testimony and Weir’s admission supported a
conviction on that charge. [Record No. 130, p. 79] In addition, the Court noted during the
second trial that the teller’s testimony, the defendant’s statement, and the defendant’s
conduct at the bank supported a conviction on the § 924(c)(1) charge. [Record No. 132,
7
Q
. . . But I guess as far as your ability to describe what you say that day in that car,
you admit that you got the clothing wrong, you admit that you picked out the wrong person the
next day, you admit that the sleeves were not correct. I mean, is that all a fair statement of the
things that you got wrong about identifying things in that car that day?
A
I would say.
[Record No. 128, pp. 37]
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pp. 102−08] Where ample evidence supported all convictions, counsel’s performance was
not deficient due to any failure to challenge the convictions based on a lack of evidence.
See United States v. Munoz, 605 F.3d 359, 373 (6th Cir. 2010) (stating a court should grant
Rule 33 relief where “the [jury’s] verdict was against the manifest weight of the evidence”);
United States v. Hughes, 505 F.3d 578, 593 (6th Cir. 2007) (stating a court should grant
Rule 33 relief only “in the extraordinary circumstance where the evidence preponderates
heavily against the verdict”).
Moreover, Weir’s assertion that his counsel was ineffective for failing to make the
jury aware of witness Applegate’s criminal and substance abuse histories and move for a
new trial based on those issues is without merit. [Record No. 151, p. 7] Applegate testified
about her two prior convictions for possession of cocaine and possession of a forged
instrument. [Record No. 131, p. 98] She also admitted that she was recovering from a
heroin addiction. [Id., pp. 99−100] Even if counsel could have asked Applegate about a
recent arrest in Tazewell, Tennessee, his performance was not unreasonable under
prevailing norms where he made the jury aware of two convictions and a serious history of
substance abuse. Nor has Weir shown a reasonable probability that the jury would not
have convicted him of the bank robbery charge if it had heard information regarding
Applegate’s additional arrest. See Strickland, 466 U.S. at 694.
Ultimately, the Court agrees with the Magistrate Judge that Weir has not established
any individual trial errors. [Record No. 166, p. 20] And the defendant certainly has not
highlighted any errors that support habeas relief. As a result, his cumulative error argument
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fails on the merits. See United States v. Trujillo, 376 F.3d 593, 614 (6th Cir. 2004); Moore
v. Parker, 425 F.3d 250, 256 (6th Cir. 2005).
4.
Sentencing
Finally, the defendant alleges ineffectiveness with regard to sentencing. [Record
No. 151, pp. 8−9] The Magistrate Judge properly concluded that this argument is without
merit because Howe covered all topics that Weir claims were not addressed at sentencing.
[Record No. 166, p. 21] For example, Weir’s sentencing memorandum explored his
abusive childhood, learning disabilities, mental health conditions, and substance abuse.
[Record No. 121, pp. 5−6] Additionally, during the hearing, Howe presented Weir’s
“propensity to work,” “school records,” “[r]ough childhood,” psychological conditions,
and addiction. [Record No. 143, pp. 27−28] Further, the Presentence Investigation Report
(“PSR”) highlighted Weir’s medical, mental, and substance abuse histories; educational
achievements; and employment. [Record No. 127, pp. 24−31] Because the record
completely contradicts Weir’s allegations, it is clear that Howe rendered adequate
performance at the sentencing hearing. Moreover, where the PSR extensively covered the
specific issues raised by Weir, no prejudice resulted. See Strickland, 466 U.S. at 694.
B.
Evidentiary Hearing
Although Weir requests an evidentiary hearing, the Magistrate Judge properly
determined that such a hearing is not warranted. [Record Nos. 151, p. 13; 166, p. 24] To
the extent the defendant presents unsubstantiated conclusions or allegations contradicted
by the record, he is not entitled to a hearing. See Huff v. United States, 734 F.3d 600, 607
(6th Cir. 2013); Short v. United States, 504 F.2d 63, 65 (6th Cir. 1974). In addition, the
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record conclusively shows that Weir is not entitled to relief, so an evidentiary hearing is
not warranted. See Arredondo v. United States, 178 F.3d 778, 782 (6th Cir. 1999).
V.
A Certificate of Appealability may issue “only if the applicant has made a
substantial showing of the denial of a constitutional right.” Miller-El v. Cockrell, 537 U.S.
322, 349 (2003) (quoting 28 U.S.C. § 2253(c)(2)) (internal quotation marks omitted).
When the denial of a § 2255 motion is based on the merits, the defendant must demonstrate
that “reasonable jurists would find the district court’s assessment of the constitutional
claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). Here, several
of Weir’s claims are nothing more than conclusory statements. With respect to the
ineffective assistance claims that are fleshed-out, the record clearly demonstrates that
counsel’s performance was adequate and that the defendant cannot prove that he was
prejudiced by any of the alleged deficiencies. To the extent Weir alleges non-ineffective
assistance of counsel claims, they lack merit based on the wealth of evidence supporting
his convictions. As a result, the Court agrees with the Magistrate Judge that no reasonable
jurist would find the above-mentioned substantive conclusions debatable or wrong. See
Slack, 529 U.S. at 484. [Record No. 166, p. 25]
When the denial of a § 2255 motion is based on procedural grounds, a Certificate
of Appealability will not issue unless “jurists of reason would find it debatable whether the
petition states a valid claim of the denial of a constitutional right and [] jurists of reason
would find it debatable whether the district court was correct in its procedural ruling.” Id.
The Magistrate Judge correctly concluded that many of Weir’s claims are procedurally
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barred and that jurists of reason would not find such a conclusion debatable. [Record No.
166, p. 25] Consequently, the defendant is not entitled to a Certificate of Appealability on
any issue raised in this proceeding.
VI.
Based on the foregoing analysis and discussion, it is hereby
ORDERED as follows:
1.
Defendant Joseph Weir’s motion for appointment of counsel [Record No.
151] is DENIED.
2.
The Report and Recommendation of Magistrate Judge Robert E. Wier
[Record No. 166] is ADOPTED and INCORPORATED herein by reference.
3.
Weir’s motion to vacate, set aside, or correct his sentence under 28 U.S.C. §
2255 [Record No. 151] is DENIED, and this matter is DISMISSED, with prejudice, and
STRICKEN from the Court’s docket.
4.
A Certificate of Appealability shall not issue with respect to any matter or
claim raised in this proceeding.
5.
A Judgment in favor of the United States shall issue this date.
This 15th day of July, 2016.
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