Peter Chun Nam Yeung v. Linda Sanders

Filing 40

OPINION FILED. Signed by Chief Judge Jerome B. Simandle on 8/5/13. (js)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

PETER CHUN NAM YEUNG,
Petitioner,

HON. JEROME B. SIMANDLE
Civil No. 11-5966 (JBS/JS)

v.
OPINION
LINDA SANDERS,
Respondent.

APPEARANCES:
Mr. Peter Chun Nam Yeung
F.C.I. Lompoc
3600 Guard Road
Lompoc, CA 93436-2705
Petitioner Pro Se
Steven J. D'Aguanno, Assistant United States Attorney
Office of the U.S. Attorney
401 Market Street, 4th Floor
P.O. Box 2098
Camden, NJ 08101
Attorney for the Respondent Linda Sanders
SIMANDLE, Chief Judge:
I.

INTRODUCTION
This matter comes before the Court on Petitioner Peter

Chum Nam Yeung’s motion to vacate, alter, or amend his
sentence, filed pursuant to 28 U.S.C. § 2255.

Petitioner

argues that the Court did not make the necessary findings of
fact in imposing his sentence; that his sentence violates the
Eighth Amendment; that this Court improperly determined the
relevant conduct attributable to his sentence; and that he is

actually innocent.

[Docket Items 1.]

The Court finds that the

motion, files and records of the case conclusively show that
Petitioner is not entitled to relief and therefore his § 2255
petition will be denied without a hearing.
II.

BACKGROUND
Petitioner was convicted before the undersigned in the

District of New Jersey of a conspiracy to smuggle cigarettes
into the United States, traffic in goods bearing counterfeit
marks, and traffic in contraband cigarettes in violation of 18
U.S.C. §§ 371, 545, 2320(a), and 2342(a)(Count 1); and (2)
trafficking in goods bearing counterfeit marks, in violation of
18 U.S.C. § 2320(a)(Counts 2 and 4).

(App.1 40.)

This criminal case was brought after a five-year
undercover investigation which led to the seizure of
approximately $5.3 million in counterfeit U.S. currency, 117
million counterfeit cigarettes, 45,000 ecstasy pills, and 390
grams of crystal methamphetamine.

(Pre-Sentence Report ¶ 95.)

Petitioner was indicted on August 21, 2006, by a grand
jury sitting in Newark, New Jersey.

(App. 3, 8-23.)

The

August 21, 2006 indictment charged Yeung along with two other
individuals, Wai Leung Chu and Zhi Qing Wu, with conspiracy to
smuggle cigarettes into the United States (Count One) and

1

"App." refers to the government's Appendix which as been
submitted along with the government's brief.
2

multiple trafficking counts (Counts Two - Five).

This five-

count indictment severed Yeung, Chu and Wu from an earlier
indictment that raised more charges against additional
defendants.

Wu was permitted to enter into a pretrial

diversion program, and he was therefore excused from trial.
(App. 3-4.)
A jury trial, presided over by the undersigned, commenced
on September 11, 2006 and closing arguments were heard on
September 18, 2006.
returned its verdict.

(App. 4.)

On September 19, 2006, the jury

(App. 5.)

Chu was charged in Counts One

and Three and was convicted of both counts.

(App. 244-45.)

Petitioner Yeung was charged in all five counts of the
Indictment and was convicted on Counts One, Two and Four.
Petitioner was acquitted on Counts Three and Five.

(App. 244-

45.)
The District Court held a sentencing hearing for
Petitioner Yeung on August 7, 2007.

At the beginning of the

sentencing hearing, the Court asked counsel whether there were
any objections to the presentence report.

Counsel for the

government requested that certain portions of the report be
deleted.

Counsel for Petitioner objected to the three-point

enhancement under U.S.S.G. § 3B1.1(b).

(App. 253-54.)

Specifically, Petitioner's counsel argued that Yeung was not a
leader of the conspiracy and contended that the evidence at

3

trial was that Yeung was merely a gofer between top players in
the scheme.

(App. 258-59.)

Consequently, counsel maintained

that Petitioner was a minor player in this criminal scheme and
asked for a reduction of the role enhancement.

(App. 259-60.)

After hearing counsel's arguments, the Court concluded
that the government did not meet its burden to establish a
three-point enhancement under Section 3B1.1(b) because the
government was unable to articulate more than five
participants.

However, the Court concluded that the government

had established a factual basis for a two-point enhancement
under Section 3B1.1(c).

This provision states, "If the

defendant was an organizer, leader, manager, or supervisor in
any criminal activity other than described in (a) or (b),
increase by 2 levels."

U.S.S.G. § 3B1.1.

In reaching this

conclusion, the Court reasoned:
What we have from the proofs at trial which, of course,
I had the benefit of presiding over as well as the
information in the Presentence Investigation, is that Mr.
Yeung was indeed a leader or manager of the criminal
activity for which he's been convicted. The Government
has demonstrated that with respect to his dealing with
Keith Tang. That Tang designated Mr. Yeung as his guy
and delegated to Yeung the authority to make the
arrangements for the Canadian delivery.
Mr. Yeung
himself, described himself as a partner with Keith Tang.
I don't find that Yeung was on the same level as Tang.
I find that Yeung was empowered with Tang's authority to
make the happening for and carry out the arrangements for
the delivery in Count Four.
Mr. Yeung was clearly a
supervisor of others with respect that the load which
forms an important basis of his conviction.
He
supervised the individuals who were seen unloading in the
videos.
He had the authority to make plans and
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arrangements as well as when to receive the product. So
he was a participant at the planning stage and also at
the execution and receiving stage. The notion that he
should receive a, either a neutral role, a minor role
adjustment downward I've considered and reject it. He
had much more than a neutral role with regard to the
offenses of conviction. It also has to be borne in mind
that Mr. Yeung is not being charged with criminal
responsibility for the over-arching RICO conspiracy, the
Racketeering Acts and all of the other things that did
not survive into the indictment, in this case, 06-656.
If I were stacking his conduct up against the overall
unrest which is a much broader universe than perhaps his
role could be described as a normal or neutral role. But
with respect to these offenses of conviction, which is a
smaller universe, he played a more dominant role.
Nonetheless, since I do not find that he has been shown
to be subject to a three level enhancement, I am going to
modify the pre-sentence report enhancement. . . . And so
carrying through the math with regard to the other
calculation, the total offense level becomes 32. And at
level 32 criminal history Category 2, the advisory
guideline range becomes 135-158 months.
(App. 269-70.)

The Court then questioned Petitioner's counsel

about whether Petitioner had reviewed the Presentence report
and whether he had any changes to make.

Petitioner's counsel

affirmed that Mr. Yeung had reviewed the Presentence report and
did not have any changes.

(App. 270.)

The Court next heard argument from counsel on the
application of the Section 3553(a) factors.

Petitioner's

counsel urged the Court to consider time served by the
Petitioner and give a lesser sentence than the guidelines due
to Petitioner's limited role. (App. 270-273.)

The government

argued that a sentence within the guideline range was
appropriate.

(App. 274-73.)
5

After hearing all counsels' arguments, the Court sentenced
Petitioner to a 144-month term of imprisonment, which consisted
of a 60-month sentence on Count One, followed by sentences on
Counts Two and Four of 84 months each, to be run concurrent
with each other and consecutive to Count One.

(App. 281.)

The

Court found Petitioner could not pay a fine within the
Guideline range; however, the Court imposed a $3,000 fine to be
paid through Petitioner's participation in the Bureau of
Prisons Inmate Responsibility Program.

(Id.)

This term of

imprisonment fell within Yeung's advisory Sentencing Guidelines
range of 135 to 158 months.
On August 7, 2007, Yeung, through his counsel, appealed
his sentence.

(App. 45.)

On appeal, Petitioner argued that

the Court improperly denied his motion for acquittal made after
the close of the government's case-in-chief.

Petitioner also

challenged the two-point enhancement imposed under U.S.S.G. §
3B1.1(c).

Finally, Petitioner argued that the Court did not

adequately consider the factors in 18 U.S.C. § 3553(a) in
determining his sentence.

(App. 52-53.)

On March 29, 2010,

the Third Circuit issued an opinion rejecting Petitioner's
arguments, finding that this Court did not abuse its discretion
and affirming the sentence imposed.

(App. 53.)

On March 23, 2011, Yeung filed a writ of habeas corpus
pursuant to 28 U.S.C. § 2241, in the Central District of

6

California, where he was confined at the Federal Correctional
Institution at Lompoc, California.

In an order dated October

12, 2011, the Central District of California recharacterized
Petitioner's motion as a § 2255 motion.

That court reasoned

that each of the Petitioner's claims amounts to an attack on
the validity of either his conviction or sentence, but not the
execution of his sentence.

Therefore, the court held that the

Petitioner's motion should have been brought under § 2255.
Consequently, the Court advised the Petitioner of the potential
adverse consequences of recharacterization and the Petitioner
declined to elect either of the two following options: (1)
consenting to the recharacterization; or (2) withdrawing his
motion.

Since the Petitioner was unresponsive, the Court

subsequently recharacterized his petition and transferred the
case from the Central District of California to the District of
New Jersey, as the District of New Jersey was the sentencing
court.

[Docket Item 12.]

The Petitioner then filed a motion to challenge the
recharacterization of his original 2241 motion and sought to
transfer the matter back to the Central District of California.
In a Memorandum Opinion dated March 27, 2012, this Court denied
Petitioner's motion.

[Docket Item 20.]

The Court then ordered

the government to answer Petitioner's § 2255 application.
[Docket Item 22.]

The government filed an answer [Docket Items

7

28-38] and Petitioner replied [Docket Item 39].
This matter is now fully briefed and ready for review.
III.

DISCUSSION
A.

Standard of Review

Under § 2255(a), a federal prisoner may move to vacate,
set aside or correct a sentence on the ground that the sentence
was imposed in violation of the Constitution or federal law,
the sentencing court was without jurisdiction, or the sentence
is in excess of the maximum authorized by law or is otherwise
subject to collateral attack. The district court shall grant a
hearing to determine the issues and make findings of fact and
conclusions of law.

28 U.S.C. § 2255(b). However, if the

motion, files and records of the case conclusively show that
the prisoner is not entitled to relief, the petition will be
denied. Id.; see also United States v. McCoy, 410 F.3d 124,
131-32 (3d Cir. 2005) (holding a district court must grant an
evidentiary hearing unless the record before it conclusively
showed the petitioner was not entitled to relief).
Generally, an evidentiary hearing must be held to resolve
issues of fact falling outside the record of the case. United
States v. Costanzo, 625 F.2d 465, 470 (3d Cir. 1980). However,
a hearing need not be held if the petition raises no legally
cognizable claim, or if the factual matters raised by the
petition may be resolved through the district court’s review of

8

the motions and the records in the case, or, in some
circumstances, if the court, in its discretion, finds the
movant’s claims to be too vague, conclusory or palpably
incredible. Id. (quoting Machibroda v. United States, 368 U.S.
487, 495 (1962)).
Furthermore, not every asserted error of law may be raised
on a § 2255 motion. See Davis v. United States, 417 U.S. 333,
346 (1974). The appropriate inquiry is whether the claimed
error is a “fundamental defect which inherently results in a
complete miscarriage of justice” and whether it presents
“exceptional circumstances where the need for the remedy
afforded by the writ of habeas corpus is apparent.” Id.
(quoting Hill v. United States, 368 U.S. 424, 429 (1962)).
Here, the Petitioner argues that the Court did not make
the necessary finds of fact in imposing his sentence; that his
sentence violates the Eighth Amendment; that this Court
improperly determined the relevant conduct attributable to his
sentence; and that he is actually innocent.

The Court will

address each argument below.
B.

Did the Court make the necessary finds of fact in
imposing his sentence

First, Petitioner maintains that the Court did not
properly follow the procedure set forth in Fed. R. Crim. P.
32(i)(3)(B) when imposing his sentence.

Petitioner argues that

the Court did not make necessary findings of fact to justify
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its sentence.
The Court finds this argument without merit.

First of

all, the Petitioner fails to specify what aspects of his
sentence were not supported by a factual finding by the Court.
The Court engaged in an extensive colloquy with counsel
regarding the record established at trial and issued an oral
opinion explaining Yeung's sentence which encompasses over six
pages of transcript.

(App. 275-82.)

Further, upon reviewing the transcript, it is clear that
the Court complied with Fed. R. Civ. P. 32(i)(3)(B).

This Rule

provides that a court "must--for any disputed portion of the
presentence report or other controverted matter--rule on the
dispute or determine that a ruling is unnecessary either
because the matter will not affect sentencing, or because the
court will not consider the matter in sentencing."
Here, at the beginning of the sentencing hearing, the
Court asked both counsel whether there were any objections to
the presentence report.

The Court heard both counsels'

objections and addressed each objection accordingly.

With

regard to Petitioner's counsel's objection, the Court heard
extended argument on whether a leadership role enhancement
under U.S.S.G. § 3B1.1(b) was warranted.

The Court then

determined that a factual basis had not been established for
that enhancement, but that the government had met its burden of

10

proof for a two-point enhancement under Section 3B1.1(c).

The

Court then went through the factual basis for this enhancement
on the record and relied on evidence provided at trial.
267-69.)

(App.

The leadership role enhancement was the only aspect

of the presentence report that was challenged by Petitioner's
counsel and this objection was adequately addressed by the
Court in accordance with Rule 32, Fed. R. Crim. P.
Therefore, the Court finds this aspect of Petitioner's
motion to vacate, alter or amend his sentence without merit and
will deny this portion of his application.
C.

Does Petitioner's sentence violate the Eighth
Amendment?

Next, Petitioner argues that the Sentencing Guidelines
were given superior consideration to the factors articulated in
18 U.S.C. § 3553(a).

Petitioner further argues that he was

denied a safety valve reduction, he was given an enhancement
for a leadership role and an enhancement for obstruction which
improperly raised his guideline range.

Consequently,

Petitioner argues that his sentence was grossly
disproportionate to the offense committed.
"The Eighth Amendment, which forbids cruel and unusual
punishments, contains a narrow proportionality principle that
applies to noncapital sentences." Ewing v. California, 538 U.S.
11, 20 (2003) (citations omitted).

The Supreme Court has

identified three factors that may be relevant to a
11

determination of whether a sentence is so disproportionate to
the crime committed that it violates the Eighth Amendment: "(1)
the gravity of the offense and the harshness of the penalty;
(ii) the sentences imposed on other criminals in the same
jurisdiction; and (iii) the sentences imposed for commission of
the same crime in other jurisdictions."
U.S. 277, 292 (1983).

Solem v. Helm, 463

Importantly, "the Eighth Amendment does

not require strict proportionality between crime and sentence.
Rather, it forbids only extreme sentences that are 'grossly
disproportionate' to the crime," Harmelin v. Michigan, 501 U.S.
957, 1001 (1991).

See also United States v. MacEwan, 445 F.3d

237, 247 (3d Cir. 2006)(applying standards set forth in Solem,
Ewing and Harmelin).
As an initial matter, the Court notes that Petitioner did
not receive an enhancement of his sentence based on
obstruction.

(PSR ¶ 305.)

In addition, a safety valve

reduction under U.S.S.G. § 5C1.2 is inapplicable in this case
because Yeung was not convicted of any of the predicate
offenses set forth in § 5C1.2(a) and Yeung's criminal history
precluded the application of this provision in any event.
Therefore, this aspect of Yeung's habeas petition lacks any
relevance and will be denied.
To the extent Petitioner argues his sentence was
improperly enhanced under U.S.S.G. § 3B1.1(c), this argument is

12

without merit.

This issue was extensively argued during

Yeung's sentencing and the Court's role enhancement was
affirmed by the Third Circuit on appeal.

Given that the Court

properly found Petitioner played a leadership role in the
convicted conspiracy to smuggle cigarettes, Petitioner was not
eligible for a minor role adjustment pursuant to § 3B1.2(b).
Consequently, Petitioner's arguments are unpersuasive.
Finally, disregarding Petitioner's arguments, Petitioner's
sentence is not grossly disproportionate under the Eighth
Amendment.

Petitioner has failed "to show a gross imbalance

between the crime and the sentence" and therefore has failed to
sustain his burden on this habeas petition.
at 248.

MacEwan, 445 F.3d

Petitioner's sentence was will within the statutory

maximum for the convicted offenses and was within the
recommended guideline range.

While other members of this

particular conspiracy received lesser sentences, this was
generally due to their lesser roles, their acceptance of
responsibility when they pleaded guilty, and especially for
those who cooperated with the government in the investigation
and prosecution of others.

(App. 279.)

Here, Mr. Yeung did

not accept responsibility or convey any remorse for his
actions, even after he was found guilty by a jury.

(App. 281.)

Therefore, this aspect of Petitioner's habeas petition
will be denied.

13

D.

Did the Court properly determine the relevant conduct
attributable to his sentence

Third, Petitioner argues that the Court considered conduct
outside what was proven at trial to calculate his sentence.
The Petitioner argues that the Court improperly applied
U.S.S.G. § 1B1.3(a)(1)(A)&(B), which provides:
Unless otherwise specified, (i) the base offense level
where the guideline specifies more than one base offense
level, (ii) specific offense characteristics and (iii)
cross references in Chapter Two, and (iv) adjustments in
Chapter Three, shall be determined on the basis of the
following:
(1)(A) all acts and omissions committed, aided,
abetted,
counseled,
commanded,
induced,
procured, or willfully caused by the defendant;
and
(B) in the case of a jointly undertaken criminal
activity (a criminal plan, scheme, endeavor, or
enterprise undertaken by the defendant in concert
with others, whether or not charged as a
conspiracy), all reasonably foreseeable acts and
omissions of others in furtherance of the jointly
undertaken criminal activity, that occurred during
the commission of the offense of conviction, in
preparation for that offense, or in the course of
attempting to avoid detection or responsibility
for that offense;
Petitioner argues that the Court considered conduct outside the
acts which were taken in furtherance of the conspiracy in
imposing his sentence.

Petitioner argues that this violates 18

U.S.C. § 3553(a).
This argument is unsupported by the record and wholly
without merit.

First, Petitioner fails to state in his

petition what conduct the Court considered which was not part
of the convicted offenses.

In reviewing the record, the Court
14

finds that it only considered conduct by the Petitioner which
was presented to the jury and used as a basis for his
conviction.

While the Court could have used evidence which was

presented on Counts Three and Five to impose a harsher
sentence, if the Court found it was supported by a
preponderance of reliable evidence for sentencing purposes, the
Court did not.

Instead, the Court declined to consider any

evidence that was used exclusively to establish Counts Three
and Five because Petitioner was acquitted of those counts by
the jury, even though the Court could have considered this
conduct in imposing Yeung's sentence.

See United States v.

Jimenez, 513 F.3d 62, 88 (3d Cir. 2008)("the district court was
free to consider relevant conduct, including conduct resulting
in acquittal, that was proved by a preponderance of the
evidence in determining [Defendant's] sentence within the
original statutory sentencing range").
The Court finds that the record conclusively shows that
the conduct used by the Court to set Petitioner's sentence was
related to his role in the charged conspiracy.

This conduct

was the basis for Yeung's convictions on Counts One, Two and
Four.

Therefore, Petitioner's argument that the Court violated

18 U.S.C. § 3553(a) in considering relevant conduct is without
merit.

To the extent Petitioner seeks relief based on this

argument, his habeas application is denied.

15

E. Actual Innocence Claim
Finally, Petitioner argues he is actually innocent of
Counts One, Two and Four.

Petitioner, however, fails to set

forth any basis for this claim and does not point to any
reliable evidence not presented at trial to support it.
Petitioner instead argues that the evidence at trial was
insufficient to convict him.
The Court finds the Petitioner's claim of actual innocence
is without merit.

A claim of "actual innocence" relates to

innocence in fact, not innocence based on a legal, procedural
defect.

A litigant must present evidence of innocence so

compelling that it undermines the court's confidence in the
trial's outcome of conviction; thus, permitting him to argue
the merits of his claim.

A claim of actual innocence requires

a petitioner to show: (a) new reliable evidence not available
for presentation at the time of the challenged trial; and (b)
that it is more likely than not that no reasonable juror would
have convicted the petitioner in the light of the new evidence.
See House v. Bell, 547 U.S. 518 (2006); Schlup v. Delo, 513
U.S. 298, 324 (1995).

Furthermore, the Supreme Court, in

House, emphasized that the gateway standard for habeas review
in claims asserting actual innocence is extremely demanding and
permits review only in the "extraordinary" case. See House, 547
U.S. at 536-37 (citing Schlup, 513 U.S. at 327).

16

The government presented sufficient evidence at trial that
Petitioner was a leader in a conspiracy to smuggle cigarettes
into the United States, traffic in goods bearing counterfeit
marks, and traffic in contraband cigarettes in violation of 18
U.S.C. §§ 371, 545, 2320(a), and 2342(a); and the government
presented compelling evidence that the Petitioner trafficked
goods bearing counterfeit marks, in violation of 18 U.S.C. §
2320(a).

The Third Circuit affirmed that sufficient evidence

was presented to sustain the government's burden of proof on
the charged counts.

Petitioner has presented no new reliable

evidence to the contrary.
Therefore, Petitioner's claim of actual innocence will be
denied.
F. Petitioner's Reply
In his reply, Petitioner raises new arguments for the
first time and contends that his habeas application should be
granted because his counsel was ineffective in failing to move
to dismiss the indictment on the basis of entrapment.
Petitioner also argues that his counsel was ineffective on
appeal.
The Court will dismiss these claims and construe them as a
second successive habeas petition.

When Petitioner's

application was converted from a Section 2241 petition to a
Section 2255 petitioner, a Miller Order was sent to the

17

Petitioner which stated:
[T}his is to advise you that under federal law, a person
seeking relief in federal court from confinement
resulting from conviction in that court must include in
a single petition, under § 2255, all potential claims for
which he or she desires to seek review and relief,
because a second or successive habeas petition under §
2255 must be dismissed unless certain very specific and
rare circumstances exist, see 28 U.S.C. § 2244.
[Docket Item 15.]

Petitioner did not write to the Court and

advise the Court that he wished to add claims for ineffective
assistance of counsel.

Instead, Petitioner continued to

challenge the characterization of his motion as a § 2255
petition rather than a § 2241 petition.

Petitioner did not

raise these ineffective assistance of counsel claims until he
filed his reply brief, at which point the government was
afforded no opportunity to respond.

In addition, Petitioner's

reply was filed on January 28, 2013, almost two years after the
Third Circuit denied his appeal and his conviction became
final.
Accordingly, the Court will construe the portion of
Plaintiff's reply raising these new ineffective assistance of
counsel claims as a second, successive habeas petition.

28

U.S.C. § 2255(h) provides:
(h) A second or successive motion must be certified as
provided in section 2244 [28 USCS § 2244] by a panel of
the appropriate court of appeals to contain-(1) newly discovered evidence that, if proven and
viewed in light of the evidence as a whole, would be
sufficient to establish by clear and convincing evidence
that no reasonable factfinder would have found the movant
18

guilty of the offense; or
(2) a new rule of constitutional law, made retroactive
to cases on collateral review by the Supreme Court, that
was previously unavailable.
Petitioner has not certified his second application pursuant to
Section 2244, Petitioner has presented no newly discovered
evidence and Petitioner has cited no new rule of constitutional
law which would provide a basis for bringing these new claims.
Petitioner should have raised these claims for ineffective
assistance of counsel in his initial § 2255 petition.

By

failing to do so, Petitioner is foreclosed from raising them at
this late juncture.
However, even considering the merits of Petitioner's
argument, the Petitioner has not established that his counsel
was ineffective.

To prevail on a claim of ineffective

assistance of counsel, Petitioner must demonstrate that (1)
counsel’s performance was so deficient as to deprive him of the
representation guaranteed to him under the Sixth Amendment of
the United States Constitution, and (2) the deficient
performance prejudiced the defense by depriving the defendant
of a fair trial. Strickland v. Washington, 466 U.S. 668, 687
(1984). To show prejudice under Strickland, Petitioner must
demonstrate that there is a “reasonable probability that but
for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Gov’t of the V.I. v.
Forte, 865 F.2d 59, 62 (3d Cir. 1989) (quoting Strickland, 466
19

U.S. at 694).
An entrapment defense requires the showing of two
necessary elements: (1) the government induced the crime; and
(2) a lack of predisposition on the part of the defendant to
engage in criminal conduct.

United States v. John, 477 Fed.

App. 12, 15 (3d Cir. 2012)(citing United States v. Wright, 921
F.3d 42, 44 (3d Cir. 1990)).
Neither the charges presented in the indictment nor the
evidence presented at trial would support an entrapment
defense.

Therefore, Petitioner's counsel was not deficient in

failing to move to dismiss the indictment based on entrapment
since such a motion would have been without legal merit.
In addition, Petitioner's counsel effectively argued
Petitioner's claims on appeal.

There is no evidence that

Petitioner's counsel failed to bring claims on appeal or failed
to present cogent arguments to the Third Circuit.

While

Petitioner's appeal was unsuccessful, that does not mean
Petitioner's counsel was ineffective.

Petitioner was convicted

after a fair trial and he received a sentence that was both
procedurally and substantively fair.

Petitioner has failed to

present evidence that his counsel was deficient or that he
suffered prejudice from his counsel's representation.
no evidence in the record that Petitioner's counsel was

There is

unprofessional or committed error at any stage of this

20

litigation.
Therefore, this aspect of Petitioner's reply is without
merit and cannot be a basis for habeas relief.
IV.

CONCLUSION
For the reasons discussed above, Petitioner's motion to

vacate, alter or amend his sentence pursuant to 28 U.S.C. §
2255 will be denied.

The record conclusively shows that the

Petitioner is not entitled to relief and therefore no
evidentiary hearing is necessary.

Accordingly, Petitioner's

application for relief will be denied and the Clerk shall close
this case upon the docket.

The accompanying Order will be

entered.
V.

CERTIFICATE OF APPEALABILITY
Pursuant to 28 U.S.C. § 2253(c)(1)(B), “[u]nless a circuit

justice or judge issues a certificate of appealability, an
appeal may not be taken to the court of appeals from the final
order in a proceeding under section 2255.” A certificate of
appealability may issue “only if the applicant has made a
substantial showing of the denial of a constitutional right.” §
2253(c)(2). To satisfy that standard, a petitioner must
demonstrate that “jurists of reason could disagree with the
district court’s resolution of his constitutional claims or
that jurists could conclude the issues presented are adequate
to deserve encouragement to proceed further.” Miller-El v.

21

Cockrell, 537 U.S. 322, 327 (2003).
Here, jurists of reason could not disagree with the
Court’s resolution of Petitioner’s constitutional claims. Under
the standard recited above, the Court will deny a certificate
of appealability.
The accompanying Order will be entered.

August 5, 2013
Date

s/ Jerome B. Simandle
JEROME B. SIMANDLE
Chief U.S. District Judge

22