Woods v. USA
Filing
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MEMORANDUM OPINION & ORDER: 1. The magistrate judges Recommended Disposition 158 is ADOPTED and INCORPORATED by reference. 2. Woods objections to the Recommended Disposition 159 are OVERRULED. 3. Woods motion to vacate, set aside, or correct his sen tence, pursuant to 28 U.S.C. § 2255, 135 is DENIED. 4. Woods motion to appoint counsel 160 is DENIED. 5. A Certificate of Appealability shall not issue because Woods has not made a substantial showing of the denial of any substantive constitutional right; 6. This habeas proceeding shall be DISMISSED and STRICKEN from the Courts docket. Signed by Judge Danny C. Reeves on 8/5/2011.(JMB)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION
(at London)
UNITED STATES OF AMERICA,
Plaintiff/Respondent,
V.
ROY DEAN WOODS,
Defendant/Petitioner.
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Criminal Action No. 6: 03-67-DCR
Civil Action No. 6: 08-7024-DCR
MEMORANDUM OPINION
AND ORDER
*** *** *** ***
This matter is pending for consideration of Defendant/Petitioner Roy Dean Woods’
pro se motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255.
[Record No. 135] Consistent with local practice, this matter was referred to United States
Magistrate Judge Hanly A. Ingram for consideration pursuant to 28 U.S.C. § 636(b)(1)(B).
The magistrate judge filed his Recommended Disposition on July 8, 2011. [Record No. 158]
Based on his review of the record and applicable law, the magistrate judge recommended that
Woods’ motion be denied.
This Court makes a de novo determination on those portions of the magistrate judge’s
recommendations to which objections are made. 28 U.S.C. § 636(b)(1)(c). Having done so,
the Court is in agreement with the magistrate judge’s recommendation, and will deny Woods’
motion.
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I.
Woods was indicted on October 23, 2003, for: (i) being a felon in possession of a
firearm and ammunition, in violation of 18 U.S.C. §§ 922(g)(1) and 942(e)(1); and (ii)
receiving a firearm and ammunition while being under indictment for a crime punishable by
imprisonment for a term exceeding one year, in violation of 18 U.S.C. § 922(n). [See Record
No. 10.] After a two-day trial, a jury found Woods guilty of both offenses. [Record No. 53]
Woods was sentenced on August 2, 2004. [Record No. 92]
At sentencing, Woods’ counsel objected to, among other things, the section of the
Presentence Report (“PSR”) that recommended application of the armed-career-criminal
(“ACCA”) enhancement.1 [Record No. 104, pp. 8–10] In particular, he argued that Woods’
1996 and 2001 convictions for Burglary in the Third Degree should not qualify as predicate
offenses for the ACCA enhancement because the court would have to examine their
underlying circumstances to determine whether they were violent crimes. After considering
counsel’s arguments, the Court concluded that Woods’ convictions did constitute violent
crimes and that he qualified as an armed career criminal. [Id., p. 36] Under § 4B1.1 of
sentencing guidelines, Woods offense level was a 33. See USSG § 4B1.1. The Court also
1
Prior to trial, the United States filed a notice specifying Woods as an armed career criminal, pursuant
to 18 U.S.C. § 924(e) and § 4B1.4(a) of the United States Sentencing Guidelines Manual (“USSG”). [Record
No. 17] The United States’ notice listed four prior convictions as predicates for the career-criminal
designation: (i) a February 8, 2001 state-court conviction for two counts of Burglary in the Second Degree
(with the offenses occurring on November 30, 1998, at two separates residences); (ii) another February 8,
2001, conviction for Burglary in the Second Degree (with a separate case number, and offense occurring on
December 4, 1998); (iii) a third February 8, 2001, conviction, but for Burglary in the Third Degree (with
another unique case number, and offense occurring on December 1, 1998); and (iv) an October 30, 1996,
conviction for Burglary in the Third Degree.
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found that Woods possessed the firearm in connection with a crime of violence — wanton
endangerment — so it increased his offense level to 34. See USSG § 4B1.4(b)(3)(A).
Finally, the Court departed upward one level because Wood’s criminal history category
substantially under-represented the seriousness of his past conduct. With a criminal history
category of VI, Woods’ guideline range was 292 to 365 months. The Court sentenced
Woods to a term of imprisonment of 365 months on count one, and 60 months imprisonment
on count two, to be served concurrently.
Woods timely appealed his sentence. The Sixth Circuit affirmed, stating, in relevant
part, that it was “reasonable for the district court to conclude that Woods’s prior burglary
conviction could be used to enhance his sentence under the ACCA and that the offenses of
conviction were committed in conjunction with a crime of violence.” United States v.
Woods, No. 04-5922/5956 (6th Cir. Oct. 28, 2005). The Sixth Circuit also affirmed the
upward departure based on under-representation of Woods’ criminal history. Id. On October
2, 2006, the Supreme Court denied Woods’ petition for a writ of certiorari. [Record No. 135,
p. 2]
On June 30, 2008, Woods filed the present motion under § 2255 seeking to vacate, set
aside, or correct his sentence. His motion was untimely, but the magistrate judge originally
assigned to the case found that Woods was entitled to equitable tolling and allowed the
motion to be filed. [Record No. 147] In his § 2255 motion, Woods argued that his trial and
appellate counsel were constitutionally ineffective for the following three reasons: (1) they
failed to argue that the government did not meet its burden in proving that Woods’ prior
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convictions qualified as predicates for the ACCA enhancement; (2) they failed to argue that
counts one and two of the indictment were multiplicitous, in violation of the Double Jeopardy
Clause; and (3) they failed to object to the one-level upward departure imposed at sentencing,
which Woods also contends violated the Double Jeopardy Clause.
On July 8, 2011, Magistrate Judge Ingram issued his Recommended Disposition.
[Record No. 158] Concerning Woods’ allegation of ineffective assistance relating to the
ACCA enhancement, the magistrate judge held that he need not consider whether counsel
committed error because Woods failed to show prejudice to his defense. Because three of
Woods’ four prior convictions were proper predicates, any failure by counsel to properly
discount the fourth did not alter Woods’ sentence. The magistrate judge also concluded that
Woods’ indictment did not violate the Double Jeopardy Clause and, therefore, counsel’s
failure to argue that it did was neither error nor prejudicial. Finally, the magistrate judge
concluded that Woods was barred from relitigating the departure issue through an
ineffective-assistance claim. The Sixth Circuit considered that issue on direct appeal and
rejected Woods’ argument. Therefore, the magistrate judge reasoned, Woods was barred
from presenting the same claim in a § 2255 motion.
On August 1, 2011, Woods filed his objections to the magistrate judge’s
Recommended Disposition.2 [Record No. 159] While difficult to interpret at times, Woods’
2
Woods’ objections were due on July 25, 2011. However, Woods asserts that he mailed his objections
on July 24, 2011. Pursuant to the prison mailbox rule, his objections are considered filed on the date they
were signed and handed over to prison officials for mailing. See Brand v. Motley, 526 F.3d 921, 925 (6th Cir.
2008). Thus, his objections are considered timely.
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objections are entitled to liberal construction. Sellers v. Morris, 840 F.2d 352, 355 (6th Cir.
1988) (extending the rule of liberal construction to pro se objections to magistrate judge
recommendations in habeas actions). Viewed liberally, his objections raise three issues.
First, Woods maintains that his prior convictions were not proper ACCA predicates and that
his counsel was inadequate for failing to further argue the point. Woods’ second objection
relies on the same argument — that his prior convictions should not be counted under the
ACCA — but contends that, as a result, his sentence violated the Due Process Clause. Third,
Woods argues that his indictment was multiplicitous and that his counsel was ineffective for
failing to raise the issue. For the reasons explained below, Woods’ objections are not
tenable. Therefore, the Court will adopt the magistrate judge’s recommendation.
II.
A.
Due Process Clause
As a preliminary matter, Woods is procedurally barred from raising new issues in his
objections that were not raised in his original petition. Murr v. United States, 200 F.3d 895,
902 n. 1 (6th Cir. 2000) (holding that a party is not permitted to raise a new argument, for the
first time, in objections to a Report and Recommendation and that failure to raise the
argument before the Magistrate Judge constitutes waiver of the same); Marr v. Foy, No.
1:07-908, 2010 U.S. Dist. LEXIS 77925, at *10 (W.D. Mich. Jan. 4, 2010) (“It is well
established that a party may not raise an argument, advance a theory, or marshal evidence
before a district judge that was not fairly presented to the magistrate judge.”). The
Magistrates Act was not intended “to give litigants an opportunity to run one version of their
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case past the magistrate, then another past the district court.” Greenhow v. United States, 863
F.2d 633, 638–39 (9th Cir. 1988), rev’d on other grounds sub nom. United States v.
Hardesty, 977 F.2d 1347 (9th Cir. 1992). Woods’ argument concerning the Due Process
Clause is new at this stage. He did not raise it in his original § 2255 petition. As a result, the
Court need not consider it at this point in litigation. See Murr, 200 F.3d at 902.
B.
Ineffective Assistance of Counsel
Woods’ remaining objections pertain to his ineffective-assistance-of-counsel claims.
To establish ineffective assistance of counsel, Woods must demonstrate, two essential
elements: (1) his attorney’s performance was deficient, i.e., below the standard of
competence demanded of attorneys in criminal cases; and (2) his attorney’s deficient
performance prejudiced the defense, i.e. deprived the defendant of a fair trial rendering the
outcome of the trial unreliable. Strickland v. Washington, 466 U.S. 668, 687-88 (1984). He
has failed to do so here.
1.
ACCA Enhancement
Woods’ central objection is that the magistrate judge erred in his discussion of the
ACCA enhancement. The magistrate judge found that any errors that may have been
committed by Woods’ counsel did not prejudice his defense because the enhancement was
proper in any event. Woods disagrees. He argues that he did suffer prejudice because the
ACCA enhancement was improper: the government failed to meet its burden of showing that
his prior convictions were violent felonies within the meaning of the ACCA. Woods presents
three theories to support his contention. First, he argues that the government did not prove
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his conviction for Burglary in the Third Degree involved a dwelling and, therefore, according
to Woods, it fails to meet the statutory definition of a violent felony. Second, he argues that
the government did not show that his crime involved an element of physical force or
violence. Third, Woods argues that his convictions cannot count as ACCA predicates under
the Sixth Circuit’s holding in United States v. Bernal-Aveja, 414 F.3d 625 (6th Cir. 2005).
However, each of Woods’ arguments is unpersuasive.
First, in addressing Woods’ objections, it is important to appropriately narrow the
analysis. The government relied on four prior convictions to contend that Woods qualified
for the ACCA enhancement. Two of those convictions were for Burglary in the Second
Degree, which unquestionably constitute ACCA predicates. See Ky. Rev. Stat. (“KRS”) §
511.030 (“A person is guilty of burglary in the second degree when, with the intent to
commit a crime, he knowingly enters or remains unlawfully in a dwelling.”). Thus, only one
of the remaining two convictions needs to be a proper ACCA predicate offense to compel
application of the enhancement.
See 28 U.S.C. § 924(e) (requiring three predicate
convictions to qualify for enhancement). In this case, the magistrate judge correctly
concluded that Woods’ 1996 burglary conviction was properly counted as a violent felony,
so it is irrelevant whether his 2001 conviction also qualified. The entirety of Woods’
objections appear to relate to the inclusion of his 2001 burglary conviction, which is
unnecessary to the Court’s conclusion. However, Woods does not specifically say that his
objections are narrowed to his 2001 conviction. Thus, construing his objections liberally, the
Court will consider whether his 1996 conviction was properly counted.
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In Taylor v. United States, 495 U.S. 575 (1990), the Supreme Court set out the test for
determining whether a conviction under a state burglary statute qualifies as a “violent
felony” under the ACCA.3 The Supreme Court explained that “a person has been convicted
of burglary for purposes of a § 924(e) enhancement if he is convicted of any crime,
regardless of its exact definition or label, having the basic elements of unlawful or
unprivileged entry into, or remaining in, a building or structure, with intent to commit a
crime.” Id. at 599.4 When conviction under a state statute requires proving each of those
elements, it is known as a “generic burglary.” Id.
3
18 U.S.C. § 924(e) defines “violent felony” as:
any crime punishable by imprisonment for a term exceeding one year. . . that-(i) has as an element the use, attempted use, or threatened use of physical force
against the person of another; or
(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves
conduct that presents a serious potential risk of physical injury to another.
18 U.S.C. § 924(e)(2)(B) (emphasis added). At one point, Woods argues that the government failed to meet
its burden in proving that his convictions were ACCA predicates because they failed to show that his crimes
“involved any purposeful, violent, [or] aggressive conduct.” [Record No. 159, p. 13 (citing United States v.
Varhook, 2011 U.S. App. LEXIS 7884 (6th Cir. 2011).)] However, this argument misses the mark.
Principally, it ignores the all-important “or” between subsections (i) and (ii). When the government argues
that a prior conviction is a “burglary” under subsection (ii), it need not make any arguments concerning the
element of force under subsection (i). Thus, Woods’ objection that the government failed to prove the
element of force is misplaced, because neither the sentencing court nor the magistrate judge in his
recommendation relied on that element. The question is whether his conviction constitutes a “burglary” as
that word is used in subsection (ii).
4
At this point, it is important to note that violation of any statute which criminalizes breaking into “a
building or structure” qualifies as a “generic burglary” for ACCA purposes. Taylor, 495 U.S. at 599. Taylor
does not require, as Woods argues, for the crime to involve a dwelling. As the magistrate judge pointed out,
Woods is likely confusing the elements for a “crime of violence” under USSG § 4B1.1 and “violent felony”
under the ACCA and USSG § 4B1.4. For a burglary to qualify as a “crime of violence” under § 4B1.1, it
must involve a “dwelling.” See United States v. McFalls, 592 F.3d 707, 714 (6th Cir. 2010). However, the
scope of generic burglary under the ACCA is broader, only requiring entry into a “building or structure.”
Taylor, 495 U.S. at 598–99. Thus, Woods’ argument that the United States stipulated that his conviction
(whether 1996 or 2001) did not involve a “dwelling” does not bear on whether it qualified as a violent felony
under the ACCA.
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Typically, when determining whether a prior conviction qualifies for the ACCA
enhancement, courts should “look only to the fact of conviction and the statutory definition
of the prior offense.” Id. at 602. This is known as the “categorical approach.” Id. However,
in some cases, burglary statutes punish a range of conduct broader than that which constitutes
generic burglary under Taylor. For instance, KRS § 511.040 — Burglary in the Third
Degree — provides that a person commits burglary “when, with the intent to commit a
crime, he knowingly enters or remains unlawfully in a building.” KRS § 511.040(a). On its
surface, the statute appears to require proof of each of the Taylor elements for “generic
burglary.” But the statute defines a “building” as “any structure, vehicle, watercraft or
aircraft: (a) [w]here any person lives; or (b) [w]here people assemble for purposes of
business, government, education, religion, entertainment or public transportation.” KRS §
511.010. Thus, the statute punishes both conduct which is a violent felony — i.e., entering
a structure with intent to commit a crime — and conduct which is not — i.e., entering a
watercraft with intent to commit a crime. See Shepard v. United States, 125 S. Ct. 1254,
1257–58 (2005) (explaining that entry into boats or cars would not qualify as “burglary”
under § 924(e)). In cases such as these, the “categorical approach” will not work. Taylor,
495 at 602; see also United States v. Ford, 560 F.3d 420, 421–22 (6th Cir. 2009). In those
cases, the Court may look beyond the statute of conviction to the underlying documents to
determine whether the jury necessarily convicted the defendant of a violent crime. “If it is
possible to violate a criminal law in a way that amounts to a [violent felony] and in a way
that does not, [the court] may look at the indictment, guilty plea and similar documents to
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see if they ‘necessarily’ establish the nature of the prior offense.” Ford, 560 F.3d at 422
(quoting Shepard, 544 U.S. at 26.).
Regarding Woods’ 1996 conviction under KRS § 511.040, the Court looks to the
indictment, guilty plea, and other documents to determine whether he necessarily admitted
to the burglary of a structure or building. Id.; Taylor, 495 U.S. at 599. Woods pled guilty
to the offense charged: burglary in the third degree.5 The note accompanying this conviction
in his presentence investigation report (“PSR”) states:
Review of the Indictment relates that on December 11, 1995, Woods
“committed the offense of Burglary (3rd Degree) by knowingly and unlawfully
entering a building owned by Morton Perks with the intent to commit a theft”
and stole four stereo speakers that were valued in excess of $300.00.
(PSR, p. 15). Woods did not object to these fact statements. “[I]f the defendant fails to
object to fact statements in the presentence investigations report (PSR) establishing that a
prior offense was a violent felony conviction, the government need not introduce at
sentencing the documentary evidence that Taylor and Shepard otherwise require.” United
States v. Reliford, 471 F.3d 913, 916 (8th Cir. 2006) (cited with approval by United States
v. Washington, 271 F. App’x 485, 488–89 (6th Cir. 2008)).
5
Woods argues in his objections that his conviction cannot count as an ACCA predicate under the
Sixth Circuit’s holding in Bernal-Aveja. 414 F.3d at 628. Bernal-Aveja concerned the problem that arises
when a sentencing court looks to the indictment for the purpose of determining whether a prior conviction
qualifies as a crime of violence under USSG § 2L1.2, but the defendant pled guilty to a lesser offense than
that charged in the indictment. Bernal-Aveja, 414 F.3d at 628. In those cases, because the defendant “did
not plead guilty to, and therefore was not actually convicted of, the . . . charge in the indictment, the
indictment alone is insufficient to meet the government’s burden of proving that [the defendant] was
previously convicted of a ‘crime of violence.’” Id. In other words, when the defendant pleads guilty to
conduct other than that charged in the indictment, a sentencing court cannot use the prior indictment alone
to determine the violent character of the conduct he pled guilty to. However, Bernal-Aveja is inapplicable
to Woods’ 1996 conviction, because he pled guilty to the crime charged in the indictment.
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Looking to the available documents — including the PSR’s not-objected-to summary
of the indictment — Woods’ 1996 conviction was a “violent felony” under § 924(e). See
United States v. Gaines, 227 F. App’x 487, 490 (6th Cir. 2007) (noting that a sentencing
court may look to the charging document when determining whether a prior conviction
qualifies as a predicate offense under the ACCA). Woods pled guilty to entering a building
with the intent to commit a crime. Thus, he pled guilty to each of the essential elements of
a burglary, as defined by Taylor. See United States v. Pluta, 144 F.3d 968, 975 (6th Cir
1998). As a result, Woods’ 1996 conviction for burglary in the third degree is properly
counted as a predicate for ACCA enhancement. Therefore, the 1996 conviction, together
with Woods’ two second-degree burglary convictions, was sufficient to support the ACCA
enhancement.
Whereas the Court properly enhanced Woods’ sentence under the ACCA, any
argument his counsel failed to make regarding the enhancement, either at sentencing or on
appeal, did not prejudice his defense. Woods has failed to meet the second prong of
Strickland, and his ineffective-assistance claim relating to the ACCA enhancement will be
denied.
2.
Double Jeopardy
Woods also objects to the magistrate judge’s findings regarding whether the
indictment was multiplicitous and thus ran afoul of the Fifth Amendment’s Double Jeopardy
Clause. The magistrate judge applied the well-settled test from Blockburger v. United States,
284 U.S. 299 (1932), to determine whether Woods was charged in violation of the Double
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Jeopardy Clause. See United States v. Gibbons, 994 F.2d 299, 301 (6th Cir. 1993) (“The
general test for compliance with the double jeopardy clause looks to ‘whether each provision
requires proof of a fact which the other does not.’” (quoting Blockburger, 284 U.S. at 304)).
The magistrate judge analyzed the elements of 18 U.S.C. § 922(g)(1) alongside those of 18
U.S.C. § 922(n), and concluded that “each provision requires proof of a fact that the other
does not.” [Record No. 158, p. 12] Specifically, § 922(g)(1) does not require that a
defendant be under indictment at the time he commits the offense, while § 922(n) does not
require that the defendant be a convicted felon. [Id.]
Woods argues that Blockburger is inapplicable, and “the better way is to read and
apply the plain meaning of the provisions of 18 U.S.C. [§] 922(g)(1) and (n). Both require
having a firearm ‘that was shipped or transported in either interstate or foreign commerce.’”
[Record No. 159, p. 10] In other words, because the two statutes share one common element,
Woods believes conviction under both would violate the Double Jeopardy Clause. Woods’
formulation does not square with the Supreme Court’s. See Blockburger, 284 U.S. at 304.
The “plain meaning” does not provide a compelling reason to set aside the Blockburger test.
The magistrate judge correctly concluded that each statute — 18 U.S.C. § 922(g)(1) and 18
U.S.C. § 922(n) — requires proof of one element that the other does not. Thus, an
indictment charging both is not multiplicitous and does not violate the Double Jeopardy
Clause.
Because the indictment did not violate the Double Jeopardy Clause, counsel was not
ineffective for failing to argue otherwise. See Mapes v. Coyle, 171 F.3d 408, 430 (6th Cir.
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1998) (counsel has no duty to raise frivolous arguments); United States v. Wilson, 976 F.2d
734 (table), 1992 U.S. App. LEXIS 23291, at *3 (6th Cir. Sept. 15, 1992) (holding that
counsel’s failure to object to indictment as multiplicitous was “not an error at all because [the
two counts] were not multiplicitous”). For the same reason, Woods’ defense was not
prejudiced by either trial or appellate counsel’s choice not to raise the issue. Thus, his
argument fails both prongs of the Strickland test. 466 U.S. at 687.
III.
Woods also has filed a motion to appoint counsel. [Record No. 160] He argues that
“after showing the Magistrate Report is highly flawed by the record on substantial
constitutional violations,” he is entitled to counsel. In short, Woods is not entitled to counsel
in this proceeding. A petitioner in a habeas proceeding has no constitutional right to counsel.
Cobas v. Burgess, 306 F.3d 441, 444 (6th Cir. 2002). 18 U.S.C. § 3006A(a)(2)(B) provides
that when a petitioner is seeking relief under § 2255, “representation may be provided” when
“the interests of justice so require.” Id. (emphasis added). The decision to appoint counsel,
when there is no evidentiary hearing, is within the discretion of the court. Mira v. Marshall,
806 F.2d 636, 638 (6th Cir. 1986). But see Rules Governing § 2255 Proceedings, R. 8 (“If
an evidentiary hearing is warranted, the judge must appoint an attorney . . . .” (emphasis
added)). In this case, no evidentiary hearing is necessary. Further, no counsel is necessary.
Woods submitted a well-reasoned § 2255 motion and his own objections to the magistrate
judge’s recommendation. The Court finds no reason to believe the interests of justice require
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appointment of an attorney to take any additional steps. Therefore, the Court will deny
Woods’ motion for an attorney.
IV.
Woods has not shown an error of constitutional magnitude to justify § 2255 relief.
He has not shown that his counsels’ performance prejudiced his defense. His ACCA
enhancement was proper and his indictment was not multiplicitous. Therefore, even
insufficient arguments concerning these points did not cause prejudice. Further, Woods has
not shown that a Certificate of Appealability should issue.6 Accordingly, it is hereby
ORDERED as follows:
1.
The magistrate judge’s Recommended Disposition [Record No. 158] is
ADOPTED and INCORPORATED by reference.
2.
Woods’ objections to the Recommended Disposition [Record No. 159] are
OVERRULED.
3.
Woods’ motion to vacate, set aside, or correct his sentence, pursuant to 28
U.S.C. § 2255, [Record No. 135] is DENIED.
6
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). To make the requisite “substantial showing
of the denial of a constitutional right” under 28 U.S.C. § 2253(c)(2), “a petitioner who has been denied relief
in a district court ‘must demonstrate that the issues are debatable among jurists of reason; that a court could
resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to
proceed further.’” Lozada v. Deeds, 498 U.S. 430, 432 (1991) (emphasis and brackets in original)
(quoting Barefoot v. Estelle, 463 U.S. 880, 893, n.4 (1983)). In the present case, Woods has not made
a substantial showing of a denial of a constitutional right. Likewise, he has not demonstrated that the
issues he now seeks to raise are debatable among jurists of reason or that the questions are adequate to
deserve encouragement to proceed further.
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4.
Woods’ motion to appoint counsel [Record No. 160] is DENIED.
5.
A Certificate of Appealability shall not issue because Woods has not made a
substantial showing of the denial of any substantive constitutional right;
6.
This habeas proceeding shall be DISMISSED and STRICKEN from the
Court’s docket.
This 5th day of August, 2011.
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