Williams v. United States of America

Filing 23

OPINION ; signed by Judge Robert Holmes Bell (Judge Robert Holmes Bell, kcb)

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
JODY WILLIAMS,
Movant,
File No. 2:13-cv-143
v.
HON. ROBERT HOLMES BELL
UNITED STATES OF AMERICA,
Respondent.
/
OPINION
Pending before this Court is Movant Jody Williams’s pro se motion under 28 U.S.C. § 2255
to vacate, set aside, or correct the sentence imposed upon him (Dkt. No. 1). The government filed
a response to this motion (Dkt. No. 20) and Movant’s trial counsel filed an affidavit (Dkt. No. 14).
Movant has filed a reply (Dkt. No. 22). The Court has carefully considered the arguments presented,
and for the reasons that follow, the Court denies the § 2255 motion and issues this Opinion, Final
Order, and Judgment. See Rules Governing § 2255 Cases, Rule 11 (referring to the order disposing
of a habeas petition as a “final order”).
I.
On August 24, 2010, a grand jury returned a superseding indictment (No. 1:10-CR-20, Dkt.
No. 34) charging Movant with one count of conspiracy to possess with intent to distribute 100 g or
more of marijuana, a Schedule I controlled substance. Movant signed a plea agreement, pleading
guilty to the conspiracy count in exchange for the government’s promise not to oppose a two-point
reduction in Movant’s offense level for acceptance of responsibility. (No. 1:10-CR-20, Dkt. No. 95.)
Movant was represented at the trial and appellate level by Attorney Michael Manning (Manning).

A change of plea hearing was held before Magistrate Judge Timothy Greeley on December
16, 2010. Judge Greeley issued a Report and Recommendation (R&R) the same day, finding that
Movant was “fully capable and competent to enter an informed plea,” “that the plea is made
knowlingly and with full understanding of each of the rights waived,” and “that it is made
voluntarily and free from any . . . promises, apart from the promises in the plea agreement.” (R&R,
No. 1:10-CR-20, Dkt. No. 99.) This Court issued an order approving and adopting the R&R on
January 25, 2011. (No. 1:10-CR-20, Dkt. No. 113.)
Movant filed a sentencing memorandum raising four objections to the Final Presentence
Report: (1) requesting a downward departure of the enhancement for his leadership role in the
offense; (2) objecting to a gun enhancement; (3) requesting a departure for the nature of his criminal
history; and (4) requesting a variance because research suggests that marijuana should no longer be
considered a Schedule I drug. (No. 1:10-CR-20, Dkt. No. 122.) At sentencing Movant’s counsel
withdrew his gun- and marijuana-based objections.
The Court discussed each of Movant’s requests for variances and downward departures. The
Court first noted that a three-level enhancement for leadership, as suggested by the PSR, was too
severe given Movant’s actual role in the conspiracy. The Court found, however, that Movant
committed acts in furtherance of the conspiracy that would require some leadership, and assigned
a two-level enhancement. The Court denied the departure related to criminal history citing Movant’s
long history of run-ins with the law for a variety of offenses. The Court also noted that marijuana
is a gateway drug, and that it could not entertain a departure based on its burgeoning quasi-legal
status.
The Court sentenced Movant to 100 months in custody and 5 years of supervised release, the

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bottom end of the guidelines range. Movant appealed his sentence, arguing that the Court abused
its discretion by denying a motion to continue sentencing until after his co-defendants were
sentenced, denying a downward departure for the seriousness of his criminal history, and denying
a downward variance on the basis that marijuana should not be classified as a Schedule I drug.
Movant’s appeal was denied on July 13, 2012. Movant’s time to petition the Supreme Court
of the United States for a writ of certiorari therefore expired on October 11, 2012. Movant filed his
timely motion to vacate his sentence on April 18, 2013. Movant raises seven grounds for relief, all
couched as ineffective assistance of counsel, in his brief: (1) counsel had an actual conflict of
interest; (2) counsel failed to properly argue the leadership enhancement; (3) counsel failed to
petition for a downward departure based on cooperation; (4) counsel failed to inform the Court of
a mitigating factor that caused him to enter the conspiracy; (5) counsel failed to suppress evidence
related to the gun enhancement; (6) counsel was ineffective in Movant’s appeal; and (7) counsel
defrauded the Court by violating the Criminal Justice Act. (Br., Dkt. No. 7 at 4–5.)
II.
A.

Motion Standards
A prisoner who moves to vacate his sentence under 28 U.S.C. § 2255 must show that the

sentence was imposed in violation of the Constitution or laws of the United States, that the court was
without jurisdiction to impose such sentence, that the sentence was in excess of the maximum
authorized by law, or that it is otherwise subject to collateral attack. 28 U.S.C. § 2255(a). To prevail
on a § 2255 motion, the movant must demonstrate “the existence of an error of constitutional
magnitude which had a substantial and injurious effect or influence on the guilty plea or the jury’s
verdict.” Humphress v. United States, 398 F.3d 855, 858 (6th Cir. 2005) (quoting Griffin v. United

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States, 330 F.3d 733, 736 (6th Cir. 2003)). Non-constitutional errors are generally outside the scope
of § 2255 relief. United States v. Cofield, 233 F.3d 405, 407 (6th Cir. 2000). A petitioner can prevail
on a § 2255 motion alleging non-constitutional error only by establishing 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.” Watson v. United States, 165 F.3d 486, 488 (6th Cir. 1999)
(quoting United States v. Ferguson, 918 F.2d 627, 630 (6th Cir. 1990) (internal quotations omitted)).
The general rule is that claims not raised on direct appeal may not be raised on collateral
review unless the petitioner shows cause and prejudice. Massaro v. United States, 538 U.S. 500, 504
(2003). Claims of ineffective assistance of counsel are an exception to this general rule. Claims of
ineffective assistance of counsel “are more properly available in a post-conviction proceeding under
28 U.S.C. § 2255, after the parties have had the opportunity to develop an adequate record on the
issue from which the reviewing court is capable of arriving at an informed decision.” United States
v. Williams, 612 F.3d 500, 508 (6th Cir. 2010) (quoting United States v. Rahal, 191 F.3d 642, 645
(6th Cir. 1999)).
However, “[a] § 2255 motion may not be used to relitigate an issue that was raised on appeal
absent highly exceptional circumstances” DuPont v. United States, 76 F.3d 108, 110 (6th Cir. 1996)
(internal citations and quotation marks omitted), or “an intervening change in the case law.” Wright
v. United States, 182 F.3d 458, 467 (6th Cir. 1999).
In an action to vacate or correct a sentence, a court is generally required to grant a hearing
to determine the issues and make findings of fact and conclusions of law “[u]nless the motion and
the files and records of the case conclusively show that the prisoner is entitled to no relief.” 28
U.S.C. § 2255(b). No evidentiary hearing is required if Movant’s allegations “cannot be accepted

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as true because they are contradicted by the record, inherently incredible, or conclusions rather than
statements of fact.” Valentine v. United States, 488 F.3d 325, 333 (6th Cir. 2007). “If it plainly
appears from the motion, any attached exhibits, and the record of prior proceedings that the moving
party is not entitled to relief, the judge must dismiss the motion.” Rules Governing § 2255 Cases,
Rule 4(b). Where the judge considering the § 2255 motion also conducted the trial, the judge may
rely on his or her recollections of the trial. Blanton v. United States, 94 F.3d 227, 235 (6th Cir.
1996). The files and records in this case conclusively show that Movant is not entitled to relief under
28 U.S.C. § 2255. Accordingly, no evidentiary hearing is required to resolve the merits of the
pending motion.
B.

Ineffective Assistance of Trial Counsel
To establish ineffective assistance of counsel, Movant must show both deficient performance

by his counsel and prejudice resulting therefrom. See Premo v. Moore, ___ U.S. ___, 131 S. Ct. 733,
739 (2011) (citing Knowles v. Mirzayance, 566 U.S. 111 (2009)). To establish deficient
performance, Movant must show that “counsel’s representation fell below an objective standard of
reasonableness.” Premo, 131 S. Ct. at 739 (quoting Strickland v. Washington, 466 U.S. 668, 688
(1984)). A court considering a claim of ineffective assistance must apply a “strong presumption that
counsel’s representation was within the ‘wide range’ of reasonable professional assistance.” Id.
(quoting Strickland, 466 U.S. at 689). Movant’s burden is to show that “counsel made errors so
serious that [he] was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth
Amendment.” See id. (quoting Strickland, 466 U.S. at 687).
Even if Movant can successfully show his counsel’s performance was deficient, “[a]n error
by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a

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criminal proceeding if the error had no effect on the judgment.” See Strickland, 466 U.S. at 691.
Therefore, Movant must further establish that he suffered prejudice as a result of his attorney’s
allegedly deficient performance. Prejudice, in this context, has been defined as “a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding would have
been different.” Premo, 131 S.Ct. at 739 (quoting Padilla v. Kentucky, 559 U.S. 356, 366 (2010));
see also Mahdi v. Bagley, 522 F.3d 631, 636 (6th Cir. 2008).
The issue is whether counsel’s representation “amounted to incompetence under ‘prevailing
professional norms,’ not whether it deviated from best practices or most common custom.” Premo,
131 S.Ct. at 739 (quoting Strickland, 466 U.S. at 690). This is a heavy burden for Movant to meet
because he must establish that his counsel’s performance was “so manifestly ineffective that defeat
was snatched from the hands of probable victory.” See Jacobs v. Mohr, 265 F.3d 407, 418 (6th Cir.
2001) (quoting United States v. Morrow, 977 F.2d 222, 229 (6th Cir. 1992) (en banc)). As the
Supreme Court has made clear, even when reviewing an ineffective assistance of counsel claim de
novo, “the standard for judging counsel’s representation is a most deferential one.” Premo, 131 S.Ct.
at 740.
Movant’s first five grounds for relief fall generally under the umbrella of ineffective
assistance of trial counsel. For the reasons that follow, with respect to each claim, Movant has failed
to show that his counsel either performed deficiently or that he was prejudiced by counsel’s
performance. Movant is therefore entitled to no relief on these grounds.
1.

Conflict of Interest
Movant argues that his counsel “breached the duty of loyalty,” (Br., Dkt. No. 7 at 5), because

he represented Andrew Kobasic, an unindicted co-conspirator, in an unrelated state court marijuana

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case. (Id. at 6.) Movant argues that this prior representation, along with the representation by his
counsel of his co-defendant Nathan Kobasic “shows that Manning is entwined into the Kobasic
family from various angles.” (Id. at 7.) Manning attempted to get the U.S. Attorney’s office to file
a Rule 35 motion on behalf of Movant and Nathan Kobasic for their cooperation, but the U.S.
Attorney only filed one on Kobasic’s behalf. (Id. at 7–9.) Movant states, “Who did Nathan Kobasic
proffer on? Based on information obtained by [Movant] his testimony was on Pedro Kobasic and
[Movant]. How can Manning represent a client ([Movant]), continue to represent him and then
represent the person (Kobasic) who helped the Government get their conviction [against Movant].”
(Id. at 9–10.) Movant concludes that “it must be fact that Nathan [Kobasic] obtained his reduction
by assisting the Government on [Movant].” (Id.)
In certain circumstances, the Court will “discharge the defendant’s Strickland obligation to
demonstrate a probable effect on the outcome and instead presume . . . prejudice.” Moss v. United
States, 323 F.3d 445, 455 (6th Cir. 2003) (citing Mickens v. Taylor, 565 U.S. 162, 166 (2002)). One
such circumstance is where “the defendant demonstrates that his attorney actively represented
conflicted interests.” Id. (citing Mickens, 565 U.S. at 166–74 (examining cases)). On collateral
review, when a movant has entered a guilty plea, in order to prevail he must show “‘(1) that there
was an actual conflict of interest; and (2) that the conflict adversely affected the voluntary nature
of the guilty plea entered by [Movant].’” Moss, 323 F.3d at 467 (quoting Thomas v. Foltz, 818 F.2d
476, 480 (6th Cir. 1987)); see also Jalowiec v. Bradshaw, 657 F.3d 293, 314 (6th Cir. 2011)
(holding that a movant must show that his counsel “actively represented conflicting interests and that
an actual conflict of interest adversely affected his lawyer’s performance.”) (internal citations and
quotations omitted).

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To show actual conflict, a movant must “‘point to specific instances in the record to suggest
an actual conflict or impairment of [his] interests.’” McElrath v. Simpson, 595 F.3d 624, 631–32 (6th
Cir. 2010) (quoting United States v. Hall, 200 F.3d 962, 965-66 (6th Cir.2000)). However a conflict
“as to a matter that is irrelevant” or one that is “merely hypothetical” does not implicate the Sixth
Amendment. Moss, 323 F.3d at 464. Adverse effect is shown by “‘demonstrat[ing] that the attorney
made a choice between possible alternative courses of action, such as eliciting (or failing to elicit)
evidence helpful to one client but harmful to the other.’” McElrath, 595 F.3d at 631–32 (internal
citations omitted).
A conflict of interest can arise when an attorney represents parties concurrently or in
succession. Concurrent, also called joint, representation of co-defendants is not per se ineffective
assistance of counsel. Id. at 455 (citing Thomas, 818 F.2d at 481). It is, however, “suspect because
of what it tends to prevent the attorney from doing.” Holloway v. Arkansas, 435 U.S. 475, 490
(1978). The Sixth Circuit has held that such representation constitutes ineffective assistance of
counsel “where joint representation compels the attorney to forgo plea negotiations on one client’s
behalf.” Moss, 323 F.3d at 456 (citing Hall, 200 F.3d at 966).
Successive representation “occurs where defense counsel has previously represented a codefendant or trial witness.” Id. at 459. In cases of successive representation “it is more difficult for
a defendant to show that counsel actively represented conflicting interests.” Id. “Thus, the most
common example of an actual conflict of interest arising from successive representation occurs
where an attorney’s former client serves as a government witness against the attorney’s current
client at trial.” Id. at 460. Importantly, “prejudice is not presumed in a successive-representation case
unless it is an ‘atypical form of successive representation’ where the facts more closely resemble

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a concurrent-representation case.” United States v. Taylor, 489 F. App’x 34, 41 (6th Cir. 2012).
Movant has failed to show an actual conflict with respect to Manning’s representation of
either Andrew or Nathan Kobasic. Manning represented Andrew Kobasic on a state-law marijuana
charge. There is no dispute that this representation ended prior to Manning’s representation of
Movant. Thus, Movant would have to show that Manning’s representation of him and Andrew
Kobasic amounted to successive representation. As stated above, successive representation occurs
when “counsel has previously represented a co-defendant or trial witness.” Moss, 323 F.3d at 459.
Here, however, Andrew was neither a co-defendant, nor has Movant offered evidence that Andrew
testified against him.
Similarly, Manning did not jointly represent Movant and Nathan Kobasic. In his affidavit,
Manning avers Movant’s conviction became final on June 21, 2012, and Manning did not begin
representing Nathan Kobasic until August 20, 2012. (Aff. of Manning, Dkt. No. 14 at 5.) This
Court’s records confirm that Manning first appeared on Nathan Kobasic’s behalf on August 21,
2012. This representation took place long after Movant entered his plea, and thus could not have
interfered with Manning’s professional behavior in securing that plea, as required for the
presumption of prejudice to apply. See Moss, 323 F.3d at 456.
Further, the Court finds Movant’s allegations and innuendo regarding Manning’s supposed
back-room dealings with the government and his other clients to be wholly incredible and could only
be generously characterized as “merely hypothetical” allegations of an actual conflict. See Moss,
323 F.3d at 464. In sum, there is no basis in law or fact for Movant’s claim that he was prejudiced
by an actual conflict of interest.

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2.

Manning’s Representation in the Sentencing Phase
Movant claims that Manning provided ineffective assistance during sentencing by: (1) failing

to argue against a leadership enhancement under U.S.S.G. § 3B1.1; (2) failing to present meritorious
arguments regarding

mitigating factors under 3553(a); (3) failing to argue against a gun

enhancement; and (4) failing to move to suppress evidence. (Br., Dkt. No. 7 at 4.)
a.

Leadership Enhancement

The Initial PSR recommended a four level enhancement for Movant’s role in the charged
offense. Manning objected, and successfully argued that Movant was not an organizer or leader. The
Final PSR recommended a three level enhancement for Movant’s leadership role in the charged
offense. In his sentencing memorandum and at sentencing, Manning argued that a three level
enhancement overstated Movant’s culpability relative to his co-conspirators. The Court agreed, and
assigned Movant a two level leadership enhancement. Movant offers speculative arguments as to
what Manning could have argued to eliminate a leadership enhancement altogether. (Br., Dkt. No.
7 at 10–13.) Review of the sentencing transcript and memorandum, however reveals that Manning
argued vigorously on Movant’s behalf, and effectively brought his enhancement down from four to
two levels. Rather than being prejudiced, Movant benefitted from his counsel’s effective assistance,
and is entitled to no relief on this ground.
b.

Mitigating Factors

Movant next argues that Manning was ineffective in seeking downward departures under
U.S.S.G. § 5K2.0. Specifically, Movant asserts that Manning raised a frivolous argument that
prejudiced him by arguing that marijuana should not be treated as a Schedule I drug for sentencing,
(Br., Dkt. No. 7 at 19–20), that Manning failed to raise a meritorious argument that Movant was in

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a “volatile relationship that caused fear within him and his family” that caused him to be involved
in the criminal enterprise, (id. at 21–22), and that Manning failed to bring positive character
witnesses to testify on Movant’s behalf at sentencing (id. at 23–24).
The Court did not accept Manning’s argument regarding the classification of marijuana as
a Schedule I controlled substance. However, Movant cannot show that presenting an argument in
good faith—even if the Court rejects it—falls below an objective standard of reasonableness.
Neither can Movant show this argument caused him prejudice. Movant has presented no evidence
that the Court imposed a harsher sentence upon him merely because Manning raised this argument.
Manning was not ineffective for failing to raise an argument about Movant’s volitile
relationship. Movant argues that his girlfriend used threats of violence, threats of self-harm, and
isolation from his friends and family to keep him in a life that involved using and selling drugs. (Id.
at 22.) Movant states that during sentencing, “The court . . . stat[es] that the defendant is 34 years
old and not 17 and it was time to wake up and take responsibility, yet again, you have a defendant
who is being controlled by someone.” (Id.) This is contradicted by Movant’s statement at sentencing
that “nobody ever forced me to do this. I took this upon myself.” (No. 1:10-CR-20, Dkt. No. 149 at
16.) It is evident by his present arguments that Movant still does not take responsibility for his
criminal activity. Movant was not prejudiced when Manning did not present this completely
frivolous argument, and is not entitled to relief on this basis.
Finally, Manning was not ineffective for not presenting positive character testimony at
sentencing. Manning attempted to have Movant’s mother testify on his behalf, but this Court was
satisfied with the information provided on Movant’s family and character in letters it had received.
(Id. at 15.) Manning did not fail to attempt to elicit positive character testimony and Movant was not

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prejudiced, as the Court took the same information contained in letters into consideration in giving
Movant his sentence. (Id. at 22–24.) Movant is not entitled to relief on this basis.
c.

Gun Enhancement

Movant argues that Manning was ineffective for withdrawing his objection to the weapons
enhancement at sentencing. Movant avers that he “agreed to accept a plea agreement based on an
agreement between him and his attorney.” (Br., Dkt. No. 7 at 24.) He asserts that he agreed to plead
guilty if Manning would “dispute the weapon enhancement at sentencing.” (Id.) This alleged
agreement was not reflected in the plea agreement Movant signed, and indeed Movant stated to the
Magistrate Judge that he had not been made any other promises in exchange for his plea. (Gov’t
Resp., Dkt. No. 20 at 23–24.) Movant argues that he was “not going to disclose trial or sentencing
strategy to the Magistrate Court,” and that in any event, strategy discussions are protected by
attorney-client privilege (Reply, Dkt. No. 22 at 10–11.) Movant also argues that if Manning had
moved to suppress the gun evidence in the first place, he would not have faced the enhancement.
(Br., Dkt. No. 7 at 30.)
As an initial matter, the Court notes that the breach of an alleged secret agreement to fight
the gun enhancement would not entitle Movant to § 2255 relief. Viewing the argument in a light
most favorable to Movant, it appears to the Court that he is arguing that he would not have pled
guilty had Manning not promised to fight the gun enhancement. In this context, a movant
demonstrates prejudice by showing a reasonable probability that, but for counsel’s errors, he “would
have insisted on going to trial.” Hill v .Lockhart, 474 U.S. 52, 59 (1985). Here, Movant has not
argued that he would have insisted on trial, but rather used the alleged agreement as a basis for
arguing that Manning was ineffective for withdrawing his objection to the drug enhancement.

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As to the gun enhancement itself, Manning’s withdrawal of his objection does not constitute
ineffective assistance of counsel because it did not fall below an objective standard of
reasonableness. A weapons enhancement is appropriate where the government shows by a
preponderance of the evidence (1) actual or constructive possession of a weapon; and (2) possession
of the weapon during the relevant conduct. United States v. Parker, 546 F. App’x 537, 540 (6th Cir.
2013) (internal citations omitted). “If the government demonstrates both these elements, the
enhancement should be applied ‘unless it is clearly improbable that the weapon was connected with
the offense.’” Id. (quoting U.S.S.G. § 2D1.1). “Relevant conduct under the sentencing guidelines
includes ‘all acts and omissions . . . that were part of the same course of conduct or common scheme
or plan as the offense of conviction.’” United States v. Faison, 339 F.3d 518, 520 (6th Cir. 2003)
(quoting U.S.S.G. § 1B1.3(a)(2)).
Here, Movant does not dispute the fact that he possessed dangerous weapons prior to and
after entering the conspiracy. Nor does he dispute that such weapons were located at his home, a
place where transactions related to the drug conspiracy took place. Because the gun enhancement
clearly applied, Manning was not constitutionally ineffective for withdrawing an objection to its
application.
d.

Suppression of Evidence

Finally, Manning was not ineffective for failing to move to suppress the gun evidence. Law
enforcement officers discovered one gun owned by Movant when searching his camper at his arrest.
There is nothing in the record to suggest that Movant did not consent to the search. Therefore,
moving to suppress this evidence would have been futile, and Manning’s representation was not
objectively unreasonable for failing to do so.

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3.

Post-Conviction Representation
Movant attempts to argue that Manning’s representation after sentencing was ineffective

because “counsel should have filed a motion to compel the US Attorneys office to file a Rule 35
motion” for Movant’s cooperation. (Br., Dkt. No. 7 at 17.) Contrary to Movant’s contention, Rule
35 vests power in the government to file a motion to reduce a sentence if a defendant has “provided
substantial assistance in investigating or prosecuting another person.” Fed. R. Crim. P. 35(b)(1). The
briefing of both parties demonstrates that Manning went to great lengths to convince the U.S.
Attorney’s office to file a Rule 35 motion on Movant’s behalf. Its failure to do so cannot be imputed
to Manning as ineffective assistance of counsel.
C.

Ineffective Assistance of Appellate Counsel
Movant argues that Manning was incompetent to appeal his case because he consulted with

other attorneys about appellate procedure and strategy and because he chose to argue certain issues
while passing on others (Br., Dkt. No. 7 at 31–34.) Claims of ineffective assistance of appellate
counsel are evaluated under the two-prong standard of Strickland. See Smith v. Robbins, 528 U.S.
259, 285 (2000). In the context of appellate cases, the Supreme Court has stated, no “decision of this
Court suggests . . . that the . . . defendant has a constitutional right to compel appointed counsel to
press nonfrivolous points requested by the client, if counsel, as a matter of professional judgment,
decides not to press those points.” Jones v. Barnes, 463 U.S. 745, 751 (1983). Therefore, the mere
fact that Movant now believes that his appellate counsel should have raised an issue or legal
argument that was not raised does not demonstrate that counsel was ineffective or that Movant was
prejudiced.

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D.

Issues Not Cognizable on a § 2255 Motion
Finally, Movant argues that Manning violated the Criminal Justice Act (CJA) by accepting

payment from Movant’s step-father and from the government at the same time. (Br., Dkt. No. 7 at
34–38.) Manning argues that these fees were for extra services Manning provided that are outside
the scope of CJA representation. The government argues that even if Manning violated the CJA,
such is not a cognizable claim on a § 2255 motion. This Court agrees, and notes without deciding
that although accepting a fee from a family member for “extra” representation does raise the
appearance of impropriety, Movant has not demonstrated that the services Manning provided and
that Movant’s step father paid for, somehow prejudiced him under Strickland. Movant is therefore
entitled to no relief on this basis.
III.
Having determined that Movant’s arguments do not merit granting his motion under 28
U.S.C. § 2255 to vacate, set aside, or correct the sentence imposed upon him, this Court may also
determine whether to issue a certificate of appealability on these constitutional claims. See Castro
v. United States, 310 F.3d 900, 901-03 (6th Cir. 2002).
A certificate of appealability should issue if the Movant has demonstrated a “substantial
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). The Sixth Circuit Court of
Appeals has disapproved the issuance of blanket denials of certificates of appealability. Murphy v.
Ohio, 263 F.3d 466, 467 (6th Cir. 2001). Rather, a district court must “engage in a reasoned
assessment of each claim” to determine whether a certificate is warranted. Id. Each issue must be
considered under the standards set forth by the United States Supreme Court in Slack v. McDaniel,
529 U.S. 473 (2000). Id. Consequently, this Court has examined Movant’s arguments under the

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Slack standard.
To warrant a grant of the certificate, “the [Movant] must demonstrate that reasonable jurists
would find the district court’s assessment of the constitutional claims debatable or wrong.” Slack,
529 U.S. at 484. The Court holds that reasonable jurists could not find this Court’s assessment of
Movant’s arguments debatable or wrong. Therefore, the Court denies Defendant a certificate of
appealability as to each issue presented.
IV.
For the foregoing reasons, the Court denies Movant’s § 2255 motion and denies a certificate
of appealability as to each issue raised.
The Court will issue a Final Order and Judgment consistent with this Opinion.

Dated: April 29, 2014

/s/ Robert Holmes Bell
ROBERT HOLMES BELL
UNITED STATES DISTRICT JUDGE

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