Pierce v. USA - 2255
Filing
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MEMORANDUM. Signed by Chief Judge Catherine C. Blake on 11/21/14. (c/m 11/21/14 bmhs, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
GARY M. PIERCE
v.
UNITED STATES OF AMERICA
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Criminal No. CCB-11-0451
(Civil No. CCB-13-744)
MEMORANDUM
Gary M. Pierce is serving a 72-month sentence in the custody of the United States Bureau
of Prisons after pleading guilty to conspiracy to commit wire fraud in violation of 18 U.S.C. §
1349. He now attacks that sentence via a motion brought under 28 U.S.C. § 2255, arguing that
his counsel was constitutionally inadequate. Specifically, Pierce contends that his lawyer
furnished ineffective assistance in failing to contest both the inclusion of a sentencing
enhancement, U.S.S.G. § 2B1.1(b)(2)(A), in his plea agreement and its subsequent application at
sentencing, as well as in failing to advise Pierce sufficiently as to the scope of his appellate rights
after sentencing.1 For the reasons explained below, no hearing is necessary to the resolution of
that motion, see 28 U.S.C. § 2255(b), which will be denied.
BACKGROUND
Pursuant to a plea agreement, Pierce pleaded guilty to conspiring to commit wire fraud in
violation of 18 U.S.C. § 1349. (See Plea Agreement 1–2, ECF No. 6.) The court accepted
Pierce’s plea. (See ECF No. 4.)
1
Pierce’s initial motion also argued that his counsel’s failure to advise him of the government’s alleged
breach of the plea agreement fell short of the constitutional standard. (See Mot. 6, ECF No. 51.) But his
memorandum in support of that motion, filed less than a month later, expressly abandoned that argument. (See
Mem. 8, ECF No. 53.) Accordingly, it will not be addressed here.
1
In that agreement, Pierce acknowledged that he owned and managed a real estate title
agency that provided “settlement services to clients who were either buying homes or
refinancing existing mortgages.” (Plea Agreement 10.) When a consumer entered such a
transaction, the lender would wire money to Pierce’s settlement agency for the purpose of paying
off the existing mortgage on the property. (See Plea Agreement 10.) Beginning in 2007, Pierce
and a co-conspirator began diverting those funds to their own accounts, either by successfully
applying for mortgages on property they did not own or by diverting the proceeds of other
peoples’ mortgages. (See Plea Agreement 11.) Because existing mortgages on these latter
properties were never paid off, clear title could not pass to the new borrower. (See Plea
Agreement 12.) Once the scheme was discovered, therefore, three title insurers that had
guaranteed the quality of title—specifically, First American Title Insurance, Security Title
Insurance of Baltimore, and Chicago Title Insurance Company—were obligated to liquidate
these unpaid debts to create clear title. (See Plea Agreement 12.) Pierce and his co-conspirator
ultimately diverted nearly five million dollars in funds that lenders had entrusted to them to pay
off existing mortgages on 17 properties. (See Plea Agreement 12–13.)
Under his plea agreement, Pierce:
waive[d] all right, pursuant to 18 U.S.C. § 3742 or otherwise, to appeal whatever
sentence is imposed (including the right to appeal any issues that relate to the
establishment of the advisory guidelines range, the determination of the
defendant’s criminal history, the weighing of the sentencing factors, and the
decision whether to impose and the calculation of any term of imprisonment, fine,
order of forfeiture, order of restitution, and term or condition of supervised
release), except . . . [that Pierce] reserves the right to appeal any term of
imprisonment to the extent that it exceeds 78 months’ imprisonment . . .
(Plea Agreement 7.)
During Pierce’s sentencing hearing, the government presented the testimony of three
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victims. A representative of Security Title stated that the insurer sustained losses amounting to
$841,341.92 as a consequence of Pierce’s fraud. (See Tr. 23.) An individual homeowner
testified to the substantial stress induced by learning of the unpaid debt on her home, which
remained unsettled at the time of the sentencing hearing. (See Tr. 31.) A second homeowner
offered similar testimony, specifying that he spent months seeking to avoid foreclosure of his
home and rectifying the adverse events recorded in his credit history. (See Tr. 35–37.) His
problems, too, remained unresolved at the time of the sentencing hearing. (See Tr. 37.) No other
victims testified at the hearing. And the presentence report listed as victims only the three title
insurance companies.
At sentencing, the court determined that the United States Sentencing Guidelines advised
a term of imprisonment of between 87 and 108 months. (See Sentencing Transcript 60, ECF No.
41; Statement of Reasons 1, ECF No. 39.) The court premised that conclusion on calculating an
offense level of 29 and a criminal history category of I. (See id.) Pierce’s base offense level was
7. See U.S.S.G. §§ 2X1.1, 2B1.1(a)(1). The magnitude of the loss caused by Pierce’s conduct
increased the offense level by 18 points. See U.S.S.G. § 2B1.1(b)(1)(J). Pierce’s abuse of the
trust placed in him by his clients increased the offense level by another 2 points. See U.S.S.G.
§3B1.3. Over Pierce’s objection, the court applied an additional 2-level increase for Pierce’s use
of sophisticated means to avoid the detection of his scheme. See U.S.S.G. § 2B1.1(b)(10)(C).
And, without objection from either party, the court applied a 2-level increase because Pierce’s
offense involved 10 or more victims. See U.S.S.G. § 2B1.1(b)(2)(A). Over the government’s
objection, the court decreased the offense level by two points in recognition of Pierce’s
acceptance of responsibility. See U.S.S.G. § 3E1.1(a). The government declined to move for an
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additional one-level reduction. See U.S.S.G. § 3E1.1(b).
Notwithstanding the sentence advised by the guidelines, the court imposed a 72-month
prison term. (See Tr. 82; Judgment 1, ECF No. 38.) After consideration of the factors
enumerated in 18 U.S.C. § 3553(a), the court concluded that such a sentence “is sufficient
without being greater than necessary . . . . to recognize the seriousness of this offense and deter
others, without unduly punishing Mr. Pierce.” (Tr. 82.) Even if application of the two-level
enhancement Pierce contests in this motion was erroneous, it would not change this court’s
determination that a 72-month sentence was reasonable under 18 U.S.C. § 3553(a).
At the conclusion of the sentencing hearing, the court stated that Pierce could consult
with his attorney about the possibility of an appeal, although the court indicated that it was
unlikely that Pierce had “anything . . . to appeal from.” (Tr. 86.) Pierce never filed a notice of
appeal. Instead, he filed this motion, after the time for an appeal had run.
ANALYSIS
The familiar standard of Strickland v. Washington, 466 U.S. 668 (1984), governs Pierce’s
claims that defense counsel rendered ineffective assistance in violation of the Sixth Amendment,
both during plea negotiations and sentencing. See, e.g., Lafler v. Cooper, 132 S. Ct. 1376, 1384
(2012) (plea negotiations); Glover v. United States, 531 U.S. 198, 200 (2001) (sentencing).
“[T]o establish ineffective assistance, [Pierce] must show ‘(1) that his attorney’s performance
fell below an objective standard of reasonableness and (2) that he experienced prejudice as a
result, meaning that there exists a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.’” United States v. Dyess, 730
F.3d 354, 361 (4th Cir. 2013) (quoting United States v. Fugit, 703 F.3d 248, 259 (4th Cir. 2012)).
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“[I]n evaluating counsel’s performance, [courts] must indulge a strong presumption that
counsel’s conduct falls within the wide range of reasonable professional assistance.” United
States v. Galloway, 749 F.3d 238, 241 (4th Cir. 2014) (quoting Sexton v. French, 163 F.3d 874,
882 (4th Cir. 1998)). That presumption accords to defense counsel “considerable latitude with
respect to proper strategy.” Tice v. Johnson, 647 F.3d 87, 102 (4th Cir. 2011).
As noted, Pierce argues that his lawyer failed him three times over: first, in failing to
object to the inclusion in his plea agreement of a two-point sentencing enhancement under
U.S.S.G. § 2B1.1(b)(2); second, in failing to object to the application of that enhancement during
sentencing; and, third, in failing to counsel Pierce adequately as to his appellate rights after
sentencing. In none of these instances, however, did Pierce’s attorney perform unreasonably.
Accordingly, Pierce’s motion will be denied.
I. Sentencing Enhancement U.S.S.G. § 2B1.1(b)(2)
Pierce asserts that his attorney wrongfully acquiesced to the application of an
enhancement under U.S.S.G. § 2B.1.1(b)(2)(A)(i), first in his plea agreement and later at
sentencing. That provision authorizes a two-level increase for fraud offenses that “involved 10
or more victims.” U.S.S.G. § 2B.1.1(b)(2)(A)(i). In his plea agreement, Pierce conceded the
applicability of that enhancement, (see Plea Agreement 7), and the court ultimately applied it at
sentencing, (see Tr. 3, 60). Pierce now asserts that, under the guidelines’ definition of “victim,”
he defrauded only three victims—namely, the three title insurance companies that reimbursed
underwriters for losses sustained as a result of Pierce’s conduct. The enhancement thus did not
apply, he continues, and his attorney’s failure to recognize and argue its inapplicability
constituted deficient performance. Given the uncertain meaning of “victim,” however, counsel’s
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failure to advance the argument Pierce now asserts was not objectively unreasonable under the
Strickland standard.
Commentary accompanying the guidelines defines “victim” as either “(A) any person
who sustained any part of the actual loss . . . ; or (b) any individual who sustained bodily injury
as a result of the offense . . . .” U.S.S.G. § 2B1.1 cmt. n.1 (emphasis added).2 “Actual loss,” in
turn, “means the reasonably foreseeable pecuniary harm that resulted from the offense.”
U.S.S.G. § 2B1.1 cmt.3(A)(i). And “pecuniary harm” refers to “harm that is monetary or that
otherwise is readily measurable in money. Accordingly, pecuniary harm does not include
emotional distress, harm to reputation, or other non-economic harm.” U.S.S.G. § 2B1.1
cmt.3(A)(iii). Similarly, “loss” excludes “[i]nterest of any kind, finance charges, late fees,
penalties, amounts based on an agreed-upon rate of return, or other similar costs.” U.S.S.G. §
2B1.1 cmt. n.3(D)(i).
Authority is split on the proper interpretation of this enhancement and the commentary
that accompanies it, as the Fourth Circuit has recognized. See United States v. Otuya, 720 F.3d
183, 191–92 (4th Cir. 2013). Pierce invokes a line of cases from the Third, Fifth, Sixth, and
Eighth Circuits, holding that a “victim,” for purposes of U.S.S.G. § 2b1.1, is an entity that bears
the ultimate pecuniary harm of fraudulent conduct, an interpretation that excludes entities
reimbursed for losses guaranteed by insurers or others. See United States v. Kennedy, 554 F.3d
415, 419 (3d Cir. 2009); United States v. Conner, 537 F.3d 480, 489 (5th Cir. 2008); United
States v. Icaza, 492 F.3d 967, 970 (8th Cir. 2007); United States v. Yagar, 404 F.3d 967, 971 (6th
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“[C]ommentary to the Sentencing Guidelines is authoritative and binding, unless it violates the
Constitution or a federal statute, or is inconsistent with, or a plainly erroneous reading of, the Guideline itself.”
United States v. Montes-Flores, 736 F.3d 357, 364 n.7 (4th Cir. 2013) (alteration in original) (quoting United States
v. Peterson, 629 F.3d 432, 435 (4th Cir. 2011)).
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Cir. 2005). The First, Seventh, and Eleventh Circuits, by contrast, hold that entities suffering
temporary losses qualify as “victims” under the enhancement, even if they are subsequently
reimbursed. See United States v. Panice, 598 F.3d 426, 433 (7th Cir. 2010); United States v.
Stepanian, 570 F.3d 51, 55–56 (1st Cir. 2009); United States v. Lee, 427 F.3d 881, 894–95 (11th
Cir. 2005). The Second and Ninth Circuits have adopted an intermediate position, holding that
entities reimbursed for their losses may constitute victims if they temporarily suffered adverse
effects measurable in money. See United States v. Pham, 545 F.3d 712, 719–20 (9th Cir. 2008);
United States v. Abiodun, 536 F.3d 162, 168–69 (2d Cir. 2008).3 The Fourth Circuit, however,
recently refused to weigh in on the debate, reserving the issue for another day. See Otuya, 720
F.3d at 191–92.
Pierce’s attorney was not constitutionally deficient for failing to assert an argument that
several circuit courts reject and that neither the Fourth Circuit nor the Supreme Court have
endorsed. See, e.g., Ragland v. United States, 756 F.3d 597, 601 (8th Cir. 2014). “[T]he
Constitution guarantees criminal defendants only a fair trial and a competent attorney. It does
not insure that defense counsel will recognize and raise every conceivable constitutional claim.”
Engle v. Isaac, 456 U.S. 107, 134 (1982). “A failure to raise arguments that require the
resolution of unsettled legal questions generally does not render a lawyer’s services ‘outside the
wide range of professionally competent assistance’ sufficient to satisfy the Sixth Amendment.”
New v. United States, 652 F.3d 949, 952 (8th Cir. 2011) (quoting Strickland, 466 U.S. at 690);
accord Smith v. Singletary, 170 F.3d 1051, 1054 (11th Cir. 1999). For this reason, “the case law
3
In so holding, the Second and Ninth Circuits elaborated on a dictum in Yagar, which observed that “there
may be situations in which a person could be considered a ‘victim’ under the Guidelines even though he or she is
ultimately reimbursed,” so long as those individuals suffered an “adverse effect as a practical matter.” Yagar, 404
F.3d at 971. See also Pham, 545 F.3d at 719; Aboidun, 536 F.3d at 168. The Third Circuit, in turn, invoked this
dictum to deny the existence of a circuit split. See Kennedy, 554 F.3d at 421. The First and Seventh Circuits,
however, have outright rejected Yagar, see Panice, 598 F.3d at 433; Stepanian, 570 F.3d at 56, and the Fourth
Circuit has identified the conflict as a circuit split, see Otuya, 720 F.3d at 191–92.
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is clear that an attorney’s assistance is not rendered ineffective because he failed to anticipate a
new rule of law.” Kornahrens v. Evatt, 66 F.3d 1350, 1360 (4th Cir. 1995) (emphasis added).
“If counsel’s failure to anticipate a change in the law will not establish that counsel performed
below professional standards, then counsel’s failure to anticipate a rule of law that has yet to be
articulated by the governing courts surely cannot render counsel’s performance professionally
unreasonable.” New, 652 F.3d at 953 (emphasis in original) (quoting Fields v. United States,
201 F.3d 1025, 1028 (8th Cir. 2000)). Stated differently, “an attorney is not constitutionally
deficient for failing to research the law of other circuits.” Gregory v. United States, 109 F. Supp.
2d 441, 458 (E.D. Va. 2000). Honeycutt v. Mahoney, for example, refused to hold deficient an
attorney’s failure to assert an argument premised on a single out-of-circuit decision and not yet
considered by either the Fourth Circuit or the Supreme Court. 698 F.2d 213, 217 (4th Cir. 1983).
A greater number of courts have endorsed the argument Pierce faults his attorney for
omitting, than the lone circuit decision discussed in Honeycutt. Unlike Honeycutt, however,
several have also considered it and expressly rejected it. Pierce’s counsel was thus not deficient
in failing to advance the argument he now asserts. See United States v. Mellor, Civ. No. 7:10Cv-80225, 2010 WL 3585892, at *9–10 (W.D. Va. Sept. 9, 2010) (holding not deficient
counsel’s failure to argue that reimbursed individuals were not victims under U.S.S.G. §2B1.1);
McCalla v. United States, Civ. No. RWT-09-2826, 2010 WL 3385458, at *3 (D. Md. Aug. 26,
2010) (same).4
II. Appellate Consultation
Pierce next argues that his attorney’s failure to consult him about the possibility of an
appeal denied him the effective assistance of counsel. Pierce’s own affidavit, however,
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Unpublished opinions are cited for the soundness of their reasoning, not for any precedential value.
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contradicts the premise of his argument, as explained below.
“[T]he decision to appeal rests with the defendant . . . .” Roe v. Flores-Ortega, 528 U.S.
470, 479 (2000). “An attorney renders constitutionally ineffective assistance of counsel if he
fails to follow his client’s unequivocal instruction to file a timely notice of appeal even though
the defendant may have waived his right to challenge his conviction and sentence in the plea
agreement.” United States v. Poindexter, 492 F.3d 263, 265 (4th Cir. 2007). By contrast,
“where the defendant neither instructs counsel to file an appeal nor asks that an appeal not be
taken,” the lawyer’s constitutional adequacy turns on “whether counsel in fact consulted with the
defendant about an appeal.” Flores-Ortega, 528 U.S. at 478. In such circumstances,
“consultation” means “advising the defendant about the advantages and disadvantages of taking
an appeal, and making a reasonable effort to discover the defendant’s wishes.” Id.
The Sixth Amendment requires consultation where “there is reason to think either (1) that
a rational defendant would want to appeal (for example, because there are nonfrivolous grounds
for appeal), or (2) that this particular defendant reasonably demonstrated to counsel that he was
interested in appealing.” Id. at 480. A lawyer’s derogation of this duty to consult constitutes
deficient performance under the Strickland standard. A defendant proves prejudice under that
standard by “demonstrat[ing] that there is a reasonable probability that, but for counsel’s
deficient failure to consult with him about an appeal, he would have timely appealed.” Id. at
484. But so long as counsel does consult her client, she “‘performs in a professionally
unreasonable manner only by failing to follow the defendant’s express instructions with respect
to an appeal.’ That is, if an attorney satisfies the obligation to ‘consult,’ then the onus is on the
defendant to expressly instruct the attorney to file a notice of appeal.” United States v. Fabian,
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798 F. Supp. 2d 647, 678 (D. Md. 2011) (quoting Flores-Ortega, 528 U.S. at 478).
Here, the court may assume, without deciding, that Pierce demonstrated sufficient interest
in the possibility of appealing to trigger his lawyer’s duty to consult. That duty often arises
“because the defendant said something to his counsel indicating that he had an interest in
appealing.” United States v. Cooper, 617 F.3d 307, 313 (4th Cir. 2010) (collecting cases).
Hudson v. Hunt, for example, held that a defendant’s “inquir[y] about his right to appeal”
required his lawyer to consult him on the matter. 235 F.3d 892, 896 (4th Cir. 2000). This case
appears no different. Pierce “inquired with his attorney regarding his appeal rights.” (Pierce
Aff., ECF No. 54-1.) Thus even if Pierce lacked any basis for appeal, the court assumes that his
attorney was constitutionally obligated to discuss the matter with him.
Pierce’s counsel honored that obligation, as Pierce’s own affidavit indicates. There,
Pierce explains that his attorney “responded to [Pierce’s]” inquiry about an appeal “and recited
the Presiding Judge’s comments.” (Pierce Aff. 2.) Those comments were as follows:
THE COURT:
Mr. Pierce, in light of th[e] sentence, and in light of the
plea agreement, I don’t believe there is anything you
probably have a right to appeal from. But if you think there
is, you can discuss that with [your lawyer]. Any appeal
would need to be noted within 14 days. Do you understand
that?
THE DEFENDANT: Yes.5
(Tr. 85–86, ECF No. 41.) On Pierce’s account, then, his lawyer responded to his query
5
With this statement, Pierce contends, “the Court may have overstepped its authority by : (1) providing
legal advice, and ; (2) by performing the role of an appellate panel.” (Mem. 5.) This remark, he continues, “is the
elephant in the room.” (Reply 7.) He faults his attorney for failing to challenge that statement or seeking
clarification of it. But those alleged failures do not amount to deficient performance. The court’s statement merely
notified Pierce that he would need to take an appeal within 14 days. Had the court failed to include qualifying
language concerning Pierce’s plea agreement, it might have risked nullifying his deal with the government. Cf.
United States v. Manigan, 592 F.3d 621, 628 (4th Cir. 2010) (refusing to enforce an appellate waiver in a plea
agreement where the court incorrectly informed the defendant during the Rule 11 colloquy that he could appeal the
sentence).
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by adopting as his own the court’s statement that Pierce lacked any basis for appeal.
Such a statement, under the circumstances of this case, qualifies as a consultation. In
evaluating the constitutional adequacy of counsel’s representation, “[n]o particular set of
detailed rules for counsel’s conduct can satisfactorily take account of the variety of
circumstances faced by defense counsel.” Flores-Ortega, 528 U.S. at 477 (quoting
Strickland, 466 U.S. at 688–89). Accordingly, courts must “judge the reasonableness of
counsel’s challenged conduct on the facts of the particular case . . . .” Id. (quoting
Strickland, 466 U.S. at 690). Here, the salient contextual detail is a sentence consistent
with the plea agreement and the absence of any colorable issues to appeal.6
Pierce’s plea agreement expressly waived his right to appeal—“including the right
to appeal any issues that relate to the establishment of the advisory guidelines range . . . .
and the calculation of any term of imprisonment”—unless he received a sentence greater
than 78 months. (Plea Agreement 7, ECF No. 6.) “A defendant’s waiver of his right to
appeal a . . . sentence is valid and enforceable if such waiver was knowingly and
intelligently made . . . . [and] clearly and unambiguously applicable to the issues raised
by the defendant on appeal.” United States v. Yooho Weon, 722 F.3d 583, 588 (4th Cir.
2013) (internal citations omitted). Pierce does not challenge the validity of his
agreement—which was confirmed via a Rule 11 colloquy—and instead seeks review of
the applicability of the enhancement codified at U.S.S.G. § 2B.1.1(b)(2)(A)(i), which his
waiver expressly covers. See, e.g., United States v. Cohen, 459 F.3d 490, 495–96 (4th
Cir. 2006) (holding that a nearly identical waiver covered an appellate “attack on the
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The absence of any colorable basis for appeal is probative of the adequacy of counsel’s relatively brief
consultation, not prejudice under Strickland. Under that prejudice standard—which this court need not, and does
not, apply here—“the merits of [Pierce’s] underlying claims [are irrelevant] when the violation of the right to
counsel” precluded an appeal he otherwise would have taken, merited or not. Flores-Ortega, 528 U.S. at 484.
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district court’s loss calculation for purposes of determining his advisory sentencing
guidelines range”); United States v. Blick, 408 F.3d 162, 169–70 (holding that waiver of
an appeal concerning “any sentence within the maximum provided in the statute of
conviction (or the manner in which that sentence was determined)” precluded a challenge
to a guidelines calculation). Pierce himself recognizes the waiver in his motion to vacate.
In response to the question whether he raised specific issues on appeal, he replied that he
did not because “[t]he plea agreement included an appeal waiver which precluded
Movant from filing a direct appeal.” (Mot. 4, ECF No. 51.)
Seen in context, then, counsel’s brief discussion is constitutionally adequate; Pierce’s
lawyer did not perform in a constitutionally deficient manner in consulting Pierce on his
prospects on appeal. The advice was accurate, and Pierce nowhere suggests that he told counsel
he wished to appeal despite the waiver to which he had agreed.
III. Certificate of Appealability
After a district court denies the entirety of a motion under 28 U.S.C. § 2255, a prisoner
may only appeal that decision if “a judge issues a certificate of appealability.” 28 U.S.C. §
2253(c)(1)(B); see also Fed. R. App. P. 22(b)(1). Accordingly, “the district court must issue or
deny a certificate of appealability when it enters a final order adverse to the applicant.” Rules
Governing Section 2255 Proceedings in the United States District Courts, Rule 11(a).
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). Where, as here, a
district court rejects on the merits a prisoner’s claims, that standard is met if the prisoner
“demonstrate[s] that reasonable jurists would find the district court’s assessment of the
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constitutional claims debatable or wrong,” Tennard v. Dretke, 542 U.S. 274, 282 (2004), or that
“the issues presented were adequate to proceed further,” Miller-El v. Cockrell, 537 U.S. 322, 336
(2003).
None of Pierce’s claims satisfy that standard. As to his Sixth Amendment claims
premised on his attorney’s failure to challenge the application of U.S.S.G. § 2B1.1(b), longstanding precedent compels the conclusion that his counsel was not constitutionally deficient for
failing to assert a position that several courts of appeal have rejected and that the Fourth Circuit
has not endorsed. See supra Part I. As to Pierce’s Sixth Amendment claim premised on his
attorney’s failure to consult him sufficiently on his right to appeal, the circumstances of this case
demonstrate that counsel satisfied the constitutional guarantee by informing Pierce that, in light
of the plea agreement and the sentence, he had waived his right to appeal. See supra Part II. For
these reasons, no certificate of appealability will issue.
CONCLUSION
For the reasons stated above, Pierce’s motion will be denied and a certificate of
appealability will not issue.
A separate order follows.
November 21, 2014
Date
/S/
Catherine C. Blake
United States District Judge
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