Coleman v. United States of America
OPINION; signed by Judge Gordon J. Quist (Judge Gordon J. Quist, jmt)
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
Case No. 1:13-CV-3
(Criminal Case No. 1:11-CR-276-2)
UNITED STATES OF AMERICA,
HON. GORDON J. QUIST
Movant, Raymond Coleman, has filed a motion to vacate, set aside, or correct his sentence
pursuant to 28 U.S.C. § 2255. The Government has filed a response. After reviewing the motion,
response, and pertinent portions of the record, the Court concludes that Coleman is not entitled to
relief, and his motion will be denied.
I. PROCEDURAL HISTORY
On September 28, 2011, Coleman was indicted on 14 counts of wire fraud, 12 counts of mail
fraud, two counts of aggravated identity theft, and one count of conspiracy related to a scheme to
receive federal financial student aid from the United States Department of Education and other
college programs in the names of individuals who did not intend to—and did not in fact—attend
those college programs. Coleman entered a plea agreement by which he agreed to plead guilty to
one count of conspiracy to commit mail fraud and one count of aggravated identity theft. At the
February 21, 2012 change of plea hearing, Coleman entered a guilty plea. However, when the Court
inquired into the basis for the plea, the Court found that Coleman did not state sufficient facts to
support a conspiracy charge.
On February 24, 2012, the government filed a felony information against Coleman, alleging
one count of wire fraud and one count of aggravated identity theft. On February 27, 2012, Coleman
pled guilty to both counts, and the Court took the second amended plea agreement under advisement
pending sentencing. On July 25, 2012, the Court sentenced Coleman to 65 months’ imprisonment,
three years’ supervised release, and restitution of $19,672.00. Coleman made several objections to
the presentence report (PSR). First, Coleman objected to a 14-level enhancement for the total
intended loss attributable to Coleman, which was calculated as $594,650.00—more than
$400,000.00 but less than $1,000,000.00.
See United States Sentencing Guidelines §
2B1.1(b)(1)(H). The Court sustained the objection at sentencing, instead applying a four-level
enhancement on the basis of actual loss.
Second, Coleman objected to three two-point
enhancements related to the number of victims, victim vulnerability, and the use of a charitable
organization. However, Defendant later withdrew two of the three objections. The Court found a
sufficient factual basis to support two of the three enhancements, but sustained Coleman’s objection
to the vulnerable victim enhancement. Altogether, after the Court sustained Coleman’s objections,
the offense level originally calculated in the PSR as 24 was reduced to 13. Combined with
Coleman’s criminal history category of VI, the Court found the applicable sentencing guideline
range to be 33 to 41 months’ incarceration. The Court sentenced Coleman to 41 months’
incarceration on Count 1 and a mandatory, consecutive term of 24 months’ incarceration on Count
2, for a total of 65 months. Coleman did not appeal his conviction or sentence. Coleman filed this
case on January 3, 2013.
II. MOTION STANDARD
To obtain relief under 28 U.S.C. § 2255, a movant must show that his “sentence was imposed
in violation of the Constitution or laws of the United States, or that the court was without jurisdiction
to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or
is otherwise subject to collateral attack.” 28 U.S.C. § 2255(a). “To prevail on a § 2255 motion
alleging constitutional error, the petitioner must establish an error of constitutional magnitude which
had a substantial and injurious effect or influence on the proceedings.” Watson v. United States, 165
F.3d 486, 488 (6th Cir. 1999) (citing Brecht v. Abrahamson, 507 U.S. 619, 637–38, 113 S. Ct. 1710,
1721–22 (1993)). “To prevail on a § 2255 motion alleging a non-constitutional error, the petitioner
must establish 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. (internal quotation marks
and citations omitted).
In this case, Coleman argues that (1) he was not “brought to justice in a timely manner,” (2)
he received ineffective assistance of counsel, (3) the Court and prosecutor violated his Fifth
Amendment right against self-incrimination, (4) the Court improperly applied two victim-related
sentence enhancements, (5) the Court improperly applied a sentence enhancement for a
misdemeanor assault conviction more than ten years old, (6) the Court’s restitution order of
$19,672.00 was inappropriate because Coleman did not receive the full amount, (7) the Court erred
by not applying a “minor role” sentence reduction, and (8) the Court’s judgment form states the
incorrect year of offense.
As a preliminary matter, Coleman has filed two motions for appointment of counsel (docket
nos. 3 & 10). “[T]he appointment of counsel in a civil case is . . . a matter within the discretion of
the court. It is a privilege and not a right.” Childs v. Pellegrin, 822 F.2d 1382, 1384 (6th Cir.1987)
(internal quotation marks and citation omitted). A petitioner has no absolute right to be represented
by counsel on habeas review. See, e.g., Wright v. West, 505 U.S. 277, 293, 112 S.Ct. 2482, 2490
(1992) (citations omitted). “The burden is upon the applicant to convince the court that there is
sufficient merit to his claim to warrant the appointment of counsel.” McCarthy v. Weinberg, 753
F.2d 836, 838 (10th Cir.1985) (per curiam). Some of the factors that a court should consider when
deciding whether to appoint counsel include the viability or frivolity of the movant’s claims, the
nature and complexity of the case, and the movant’s ability to present the case. Id. at 838–39; see
also Henry v. City of Detroit Manpower Dep’t, 763 F.2d 757, 760 (6th Cir. 1985) (en banc)
(“[D]istrict courts, in considering an application for appointment of counsel, should at least consider
plaintiff's financial resources, the efforts of plaintiff to obtain counsel, and whether plaintiff's claim
appears to have any merit.”).
In this case, the relevant issues are not so complex that they have precluded Coleman from
effectively presenting his case. Even assuming that Coleman’s case were so complex that it
inhibited his ability to present it, the Court may consider the viability of Coleman’s claims. Here,
only Coleman’s ineffective assistance of counsel and Fifth Amendment claims are cognizable on
a 28 U.S.C. § 2255 motion. See, e.g., United States v. Ferguson, 918 F.2d 627, 630 (6th Cir. 1990)
(requiring movant to establish 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). As
detailed below, the Court finds that Coleman’s ineffective assistance of counsel and Fifth
Amendment claims are insufficient grounds upon which to vacate, correct, or amend Coleman’s
sentence. Thus, exercising its discretion, the Court denies Coleman’s request for appointment of
A. Being Brought to Justice in a Timely Manner
Coleman’s first ground for § 2255 relief is that he was not “brought to justice in a timely
manner” because the investigators allegedly knew of Coleman’s illegal actions beginning in 2007
but did not charge him until 2011. Section 2255 motions are not available to test the legality of
matters which should have been raised on direct appeal. See, e.g., Massaro v. United States, 538
U.S. 500, 504–05, 123 S. Ct. 1690, 1694 (2003). United States v. Warner, 23 F.3d 287, 291 (10th
Cir. 1994). A defendant’s failure to present an issue on direct appeal bars him from raising the issue
in his § 2255 motion, unless he can show cause excusing his procedural default and actual prejudice
resulting from the errors of which he complains, or can show that a fundamental miscarriage of
justice will occur if his claim is not addressed. See id.
In this case, Coleman did not raise the issue before the district court and did not appeal.
Coleman argues that he did not appeal because his counsel failed to appeal, despite that Coleman
wrote two letters to his counsel requesting an appeal. However, as discussed below, Coleman’s
ineffective assistance of counsel claim on the basis of his attorney’s failure to appeal lacks merit.
Thus, Coleman has not shown good cause for failure to raise this argument.
Even if this Court were to consider the merits of Coleman’s argument, Coleman has not
offered a sufficient basis on which to grant a § 2255 motion. First, Coleman does not offer a
specific legal basis for his claim, nor does he argue that the United States failed to charge him within
the applicable five-year statute of limitations. See 18 U.S.C. § 3282. Second, it does not appear that
Coleman’s claim is of a constitutional magnitude warranting § 2255 relief. See, e.g., Watson v.
United States, 165 F.3d 486, 488 (6th Cir. 1999); United States v. Williams, 684 F.2d 296, 302 (4th
Cir. 1982) (“[P]reindictment delay to allow the government to complete its investigation is not
violative of due process unless it violates fundamental concepts of justice, fair play and decency.
In the present case the defendant has shown no actual prejudice because of the delay.”)
B. Ineffective Assistance of Counsel
Coleman’s second ground for relief is ineffective assistance of counsel. Coleman argues that
(1) the district judge improperly inquired into Coleman’s basis for his guilty plea—which Coleman
argues violates his Fifth Amendment right against self-incrimination—and (2) that his attorney
should have objected to the Fifth Amendment violation. For purposes of Coleman’s first ground
for relief (not being brought to justice in a timely manner) and his ineffective assistance of counsel
argument, Coleman argues that he failed to raise these issues on appeal because his counsel failed
to file an appeal despite that Coleman wrote his counsel two letters instructing him to appeal.
The Supreme Court in Strickland v. Washington articulated the standard for evaluating
ineffective assistance of counsel claims:
First, the defendant must show that counsel’s performance was deficient. This requires
showing that counsel made errors so serious that counsel was not functioning as the
‘counsel’ guaranteed the defendant by the Sixth Amendment. Second, the defendant must
show that the deficient performance prejudiced the defense. This requires showing that
counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result
is reliable. Unless a defendant makes both showings, it cannot be said that the conviction
... resulted from a breakdown in the adversary process that renders the result unreliable.
466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984); see also Ludwig v. United States, 162 F.3d 456,
458 (6th Cir. 1998). In order to show prejudice from a failure to object, a defendant must show 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.’” Stone v. United States, 258 F. App’x 784, 787 (6th Cir.
2007) (quoting Strickland, 466 U.S. at 694, 104 S. Ct. at 2068).
The two-part Strickland test applies to claims of ineffective assistance of counsel for failure
to file a notice of appeal. Roe v. Flores-Ortega, 528 U.S. 470, 477, 120 S. Ct. 1029, 1034 (2000).
“[C]ourts must ‘judge the reasonableness of counsel’s challenged conduct on the facts of the
particular case, viewed as of the time of counsel’s conduct,’ and ‘[j]udicial scrutiny of counsel’s
performance must be highly deferential.’” Id. (quoting Strickland, 466 U.S. at 689, 690, 104 S. Ct.
at 2065, 2066). The Roe Court rejected a per se rule that an attorney must always file an appeal
unless specifically told otherwise. Rather, the Court divided failures to file notices of appeal into
three categories: when the defendant (1) specifically requests that his counsel file an appeal, (2)
explicitly instructs his counsel not to file an appeal, and (3) does not clearly convey his preference.
Id. When a defendant specifically requests an appeal, “a lawyer who disregards specific instructions
from the defendant to file a notice of appeal acts in a manner that is professionally unreasonable,”
and the defendant “is entitled to [a new] appeal without showing that his appeal would likely have
had merit.” 528 U.S. at 477, 120 S. Ct. at 1035 (internal citation and quotation marks omitted).
When a defendant expressly instructs his counsel not to file an appeal, the defendant has no claim
of ineffective assistance of counsel. Id. When a defendant does not clearly convey his preference,
the Supreme Court looks to whether counsel “consulted” with the defendant about the benefits and
drawbacks of bringing an appeal. Id. at 478, 120 S. Ct. at 1035. Consultation occurs when the
attorney “advis[es] the defendant about the advantages and disadvantages of taking an appeal, and
mak[es] a reasonable effort to discover the defendant’s wishes.” Id. If consultation has occurred,
then “[c]ounsel performs in a professionally unreasonable manner only by failing to follow the
defendant’s express instructions with respect to an appeal.” Id. at 478, 120 S. Ct. at 1036. If, on the
other hand, counsel failed to consult with his client, then the court must address whether the failure
to consult, by itself, is indicative of deficient performance. See id. Even if counsel’s failure to
consult was deficient, the defendant “must demonstrate 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, 120 S. Ct. at 1038.
Regarding Coleman’s Fifth Amendment argument, Coleman has not shown that his
attorney’s failure to object to the judge’s inquiry into the factual basis for Coleman’s plea was an
error “so serious” that his counsel was not functioning as the “counsel guaranteed [Coleman] by the
Sixth Amendment.” Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. It is clear from the transcript
that the magistrate judge conducting the change of plea hearing informed Coleman of his rights:
THE COURT: Mr. Coleman, I’m going to be talking to you about your rights in
some detail. I’ll be talking to you also about what the charges are against you, what
the penalties for those could be.
But the first thing I do want to remind you is you still have the right to remain silent.
You do not have to say anything to anyone about what you’ve been charged with.
You don’t have to say anything to me. You don’t have to say anything to anyone
from law enforcement or to anyone else.
However, if you enter a guilty plea you’ll be giving up that right because I’ll be
asking you what you did that makes you guilty, and I have to do that under our
federal rules. It’s called establishing a factual basis for your plea.
So, are you willing to give up your right to remain silent today for purposes of
entering a guilty plea?
THE DEFENDANT: Yes, ma’am.
(Tr. of Omnibus Hearing, Docket no. 95, Page ID 439–40.) During the course of the hearing, the
judge again reminded Coleman of his right to remain silent, and explicitly stated that he would “give
up [his] right against self-incrimination” upon a guilty plea because the judge would be required to
ask Coleman “what [Coleman] did that makes [him] guilty.” (Id. at 448–49.) In accepting a plea
agreement, a court is required to determine whether there is a sufficient factual basis to support a
guilty plea. Fed. R. of Crim. P. 11(b)(3); see also Mitchell v. United States, 526 U.S. 314, 322, 119
S. Ct. 1307, 1312 (1999) (discussing the scope of waiver of the right against self-incrimination in
the context of rule 11 plea colloquies). The Supreme Court has explicitly indicated that a defendant
entering a plea agreement may still “withhold information by invoking the privilege against selfincrimination at a plea colloquy” but “runs the risk that the district court will find the factual basis
inadequate.” Mitchell, 526 U.S. at 324, 119 S. Ct. at 1313. By inquiring into the factual basis for
Coleman’s guilty plea, the Court did not violate Coleman’s right against self-incrimination, and,
accordingly, Coleman’s counsel’s failure to object was not deficient performance.
In addition, Coleman has not shown prejudice from his attorney’s failure to object. Coleman
has not shown that there is a reasonable probability that “but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” Strickland, 466 U.S. at 694, 104 S. Ct. at 2068.
Coleman has conceded that the government charged him on the same factual basis in the original
indictment, information that he gave to the government no later than January 27, 2010—over two
years before Coleman’s guilty plea.1 (See Tr. of Omnibus Hearing, Docket no. 95, Page ID 467; see
also Gibbons Decl., ¶ 8, Docket no. 8, Page ID 33–34.) As such, Coleman has not demonstrated a
reasonable probability that the result of the proceeding would have been different.
Coleman also argues that his attorney was ineffective because he failed to appeal despite that
Coleman allegedly wrote to his attorney two times requesting an appeal. Coleman has the burden
of proving his allegation that his counsel was constitutionally ineffective by a preponderance of the
evidence. See, e.g., Pough v. United States, 442 F.3d 959, 964 (6th Cir. 2006). First, Coleman has
only offered a sworn statement that he twice asked for an appeal and his attorney did not file one.2
(Docket no. 1, Page ID 4.) The Government, however, has offered a declaration from Coleman’s
counsel averring that counsel met with Coleman following sentencing and discussed the prospects
This argument addresses both Coleman’s second and third grounds for his § 2255 motion. Coleman argues
both that the Court and his counsel violated his Fifth Amendment right against self-incrimination by inquiring into the
basis for his plea, and that the United States Attorney improperly used the information gathered during the plea colloquy
to bring “another indictment” against Coleman. However, the record shows that the factual basis for the information
brought by the United States shortly after the change of plea hearing at which the Court found an insufficient factual
basis for the first plea agreement was the same factual basis as the original indictment. (Compare Indictment, Docket
no. 3 with Information, Docket no. 60.) The Information alleges that Coleman (1) committed wire fraud by devising a
scheme using wire communication in interstate commerce to obtain federal financial student aid by false and fraudulent
pretenses and representations, including using personal identifiers of a deceased person, and (2) committed aggravated
identity theft by knowingly using, without lawful authority, the identification of another person during and in relation
to the commission of wire fraud. Counts 12 (wire fraud) and 28 (aggravated identity theft) of the Indictment allege the
same facts. Moreover, as discussed above, the Court’s inquiry into the factual basis of Coleman’s guilty plea did not
violate Coleman’s Fifth Amendment right against self-incrimination. See Fed. R. Crim. P. 11(b)(3); see also Mitchell,
526 U.S. at 322, 119 S. Ct. at 1312.
The end of Coleman’s signed motion states, “I declare (or certify, verify, or state) under penalty of perjury that
the foregoing is true and correct and that this Motion under 28 U.S.C. § 2255 was placed in the prison mailing system
on 12/30/2012 (month/date/year).”
of appeal. (Gibbons Decl., ¶ 7, Docket no. 8, Page ID 31–32.) Counsel advised Coleman not to
appeal because of the significant downward departure Coleman had received compared to the PSR
recommendation. (Id. at 32.) According to counsel, Coleman affirmatively agreed with counsel’s
advice not to file an appeal, and explicitly instructed counsel not to file an appeal.3 (Id.) Counsel
did not receive any subsequent written communications from Coleman, and it is the practice of
counsel’s office to open every piece of mail, review it, and place it into the file into which the mail
relates. (Id.) There is no written communication from Coleman in counsel’s pertinent files. (Id.)
Weighing Coleman’s statement against his counsel’s declaration, Coleman has not met his burden
of establishing by a preponderance of the evidence that he instructed his counsel to file an appeal
and his counsel failed to file an appeal. Moreover, it is not likely that both of Coleman’s letters
requesting an appeal were incorrectly delivered, which weighs against Coleman’s sworn statement.
Thus, Coleman has not satisfied his burden.
C. Sentencing Calculation
Coleman also alleges that the Court made three errors in calculating his sentence. First,
Coleman argues that the Court should not have applied two victim-related sentence enhancements.
Second, Coleman asserts that the Court should have applied a sentence reduction for Coleman’s
minor role. Third, Coleman states that the Court incorrectly calculated his criminal history score
by considering a misdemeanor assault that occurred over ten years prior to his sentencing.
Coleman first asserts that the only victim of his crime was the United States Department of
Education. As such, Coleman argues that the Court should not have added any victim-related
adjustments to his sentence calculation. Coleman’s claim lacks merit. As an initial matter, Coleman
The Court, on the record at sentencing, and after explaining to Coleman his right to an appeal, had counsel
explain to Coleman that, in order to file an appeal, Coleman needed to instruct his counsel to appeal. (Sentencing Tr.,
Docket no. 96, Page ID 501–02.) Coleman acknowledged that he understood. (Id. at 502.)
cannot raise this claim in a § 2255 motion. “[O]utside of extraordinary circumstances, claims of
nonconstitutional error in sentencing cannot be raised in a § 2255 motion.” United States v.
McArthur, No. 10-cv-14726, 2011 WL 2144436, at *1 (E.D. Mich. May 31, 2011) (finding that a
claim that a co-defendant received a lesser sentence was not cognizable on a § 2255 motion).
Second, to the extent that Coleman argues that his counsel was ineffective because he withdrew his
objections to (1) a two-point enhancement for an offense involving at least 10 victims, and (2)
another two-point enhancement for use of a charitable organization, Coleman’s argument is
unpersuasive. The record shows that the Coleman’s counsel initially objected to the enhancements
now challenged by Coleman. (Docket no. 79, Page ID 253–54.) However, counsel withdrew his
two objections (while maintaining objections to the vulnerable victim and amount of loss
enhancements) because he did not believe there was a basis for objection. (See Docket no. 87, Page
ID 360; Gibbons Decl. ¶ 9, Docket no. 8 Page ID 34–35.) Coleman’s counsel avers that he
withdrew the objections with Coleman’s consent. (Gibbons Decl. ¶ 9, Docket no. 8 Page ID 34.)
The Court considered Coleman’s remaining objections, finding a factual basis to support
enhancements for the number of victims and use of a charitable organization.4 (Sentencing Tr.,
Docket no. 96, Page ID 479-88.) Therefore, the record does not support that Coleman’s counsel was
either deficient, or that Coleman experienced prejudice—there is not a reasonable likelihood that
the result of the proceeding would have been different had Coleman’s counsel not withdrawn his
objections to the two enhancements. Moreover, Coleman has not shown any “extraordinary
circumstances” that would justify considering this sentencing argument in a § 2255 motion.
Second, Coleman argues that the Court should have reduced his sentence because he played
a “minor role” in the scheme. Specifically, Coleman argues that he should have received at least
The Court also explicitly asked Coleman at sentencing whether Coleman had any other objections to the PSR.
Coleman responded in the negative. (Sentencing Tr., Docket no. 96, Page ID 474.)
a two-point reduction because he was “not a leader, organizer or manager.” (Docket no. 1, Page ID
15.) The Court is unpersuaded. Although the PSR states that “[t]here is no evidence Mr. Coleman
held a supervisory or managerial role in the offense,” at the same time, the PSR supports that
Coleman had a significant role in the scheme. (See PSR, Docket no. 81, Page ID 292–98.) A
sentence reduction for a mitigating role should be applied where a defendant “plays a part in
committing the offense that makes him substantially less culpable than the average participant.”
U.S.S.G. § 3B1.2, Application Note 3(A). There is no evidence to support such a finding for
Coleman. Moreover, Coleman has not shown any “extraordinary circumstances” that would justify
considering this sentencing argument in a § 2255 motion.
Finally, Coleman argues that the Court incorrectly calculated his criminal history score by
adding one point for a misdemeanor assault that occurred over ten years prior to his sentencing.
However, after careful review of the PSR and sentencing calculation, it appears that Coleman is
mistaken: the Court did not add one point for any misdemeanor assault. (See PSR, Docket no. 81,
Page ID 302–07; Sentencing Tr., Docket no. 96, Page ID 489–90.) Although Coleman received
three points for a 1994 assault and battery conviction and malicious destruction of property, it was
a felony conviction and the Court appropriately scored it at three points. Moreover, because the
Court calculated Coleman’s criminal history score at 16 points, even if this Court were to remove
one point, Coleman’s criminal history category would still have been VI, and Coleman’s sentencing
guideline range would have been the same. See U.S.S.G. Sentencing Table (criminal history
category VI for 13 or more points). Furthermore, Coleman has not shown any “extraordinary
circumstances” that would justify considering this sentencing argument in a § 2255 motion.
D. Restitution and Amount of Loss
Coleman also argues that the Court wrongly ordered Coleman to pay restitution in the
amount of $19,672.00 because Coleman “did not receive” that amount. (Docket no. 1, Page ID 14.)
Relatedly, Coleman challenges the four-point enhancement for amount of loss, which was based on
the amount of actual loss of $19,672.00 rather than intended loss of $594,650.00. The Court
sustained Coleman’s objection to the attempted loss, resulting in a four-point enhancement instead
of a 14-point enhancement.
Challenges to restitution are not cognizable on a § 2255 motion. See, e.g., United States v.
Watroba, 56 F.3d 28, 29 (6th Cir. 1995) (“[A] defendant may not bring a petition for habeas corpus
under 28 U.S.C. § 2255 when he is not claiming the right to be released, but challenging the
imposition of a fine.”); United States v. Washington, No. 97-2160, 1998 WL 899978, at *2 (6th Cir.
Dec. 17, 1998) (“If Washington’s motion is construed as brought under 18 U.S.C. § 2255, it must
also fail. A challenge to restitution is not cognizable in a motion to vacate under § 2255.”)
Furthermore, as above, nonconstitutional challenges to a movant’s sentence—in this case, the
enhancement points attributable to amount of loss—are also not cognizable on a § 2255 motion.
McArthur, 2011 WL 2144436, at *1.
Even if the Court were to address the merits of Coleman’s argument, Coleman’s claim lacks
merit. According to Coleman’s Sentencing Memorandum, “[t]he parties agree[d] that the extent of
actual loss incurred in this offense is $19,672.00.” (Sentencing Mem., Docket no. 87, Page ID 361.)
Further, Coleman “agree[d] to make full restitution for the losses caused by his activities,”
contemplating that the amount of loss would be $19,672.00. (PSR, Docket no. 81, Page ID 291.)
Coleman has not offered any evidence that he did not receive the full amount of loss, nor is the
amount erroneous merely because he did not receive the full amount of loss when he agreed that the
final restitution amount of $19,672.00 reflects the actual amount of loss attributable to his crime.
Therefore, the Court is unpersuaded by Coleman’s argument. Furthermore, Coleman has not shown
any “extraordinary circumstances” that would justify considering this sentencing argument in a §
E. Year of Offense
Finally, Coleman argues that the Court should grant his motion because the sentencing
judgment lists the year of his offenses as 2009, when it should have been 2007. Although Coleman
is correct about the clerical error on the judgment form, (see docket no. 91, Page ID 375), the error
is not of a constitutional magnitude, and is therefore an insufficient basis for granting a § 2255
motion. Cf. Griffin, 330 F.3d at 736. Furthermore, Coleman failed to raise this issue before the
district court or on appeal, so the issue is procedurally defaulted for purposes of this motion. See
Massaro, 538 U.S. at 504–05, 123 S. Ct. at 1694.
III. NO CERTIFICATE OF APPEALABILITY
Under 28 U.S.C. § 2253(c)(2), the Court must also determine whether a certificate of
appealability should be granted. A certificate should issue if Coleman has demonstrated a
“substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). The Sixth
Circuit has disapproved issuance of blanket denials of a certificate of appealability. Murphy v. Ohio,
263 F.3d 466, 467 (6th Cir. 2001). Rather, the district court must “engage in a reasoned assessment
of each claim” to determine whether a certificate is warranted. Id. at 467. Each issue must be
considered under the standards set forth by the Supreme Court in Slack v. McDaniel, 529 U.S. 473,
120 S. Ct. 1595 (2000). Murphy, 263 F.3d at 467. Consequently, this Court has considered
Coleman’s claim under the Slack standard.
Under Slack, 529 U.S. at 484, 120 S. Ct. at 1604, to
warrant a grant of the certificate, “[t]he petitioner must demonstrate that reasonable jurists would
find the district court’s assessment of the constitutional claims debatable or wrong.” The Court
finds that reasonable jurists could not find that this Court’s dismissal of any of Coleman’s claims
was debatable or wrong. Therefore, the Court will deny Coleman a certificate of appealability.
For these reasons, Coleman’s § 2255 Motion (docket no. 1) will be dismissed. In addition,
the Court will deny Coleman a certificate of appealability because he has failed to make a
“substantial showing of a denial of a constitutional right.”
A separate order will issue.
Dated: July 15, 2013
/s/ Gordon J. Quist
GORDON J. QUIST
UNITED STATES DISTRICT JUDGE
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