KOLASINAC v. UNITED STATES OF AMERICA
Filing
29
OPINION. Signed by Judge Jose L. Linares on 4/7/2016. (seb)
*NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
MIRSAD KOLASINAC,
Civil Action No. 13-1397 (ILL)
Petitioner,
v.
:
OPINION
UNITED STATES OF AMERICA,
Respondent.
LINARES, District Judge:
Presently before the Court is Petitioner Mirsad Kolasinac’s motion to vacate, set aside, or
correct his sentence brought pursuant to 28 U.S.C.
§
2255. (ECF No. I). Petitioner filed his
motion on or about March 6, 2013. (Id.). The Government ultimately filed a letter response on
June 16, 2014, (ECF No. 18), to which Petitioner replied.
(ECF No. 19).
Following the
appointment of counsel, Petitioner also filed a counseled brief in support of his petition on
December 23, 2015. (ECF No. 24). For the following reasons, this Court will grant Petitioner’s
motion solely as to his claim that the drug quantity on which his sentence was based was improper,
but will deny Petitioner’s remaining claims without a hearing, and will deny Petitioner a certific
ate
of appealability as to his non-drug quantity claims.
I.
BACKGROUND
In its opinion upholding Petitioner’s sentence on direct appeal, the Third Circuit provid
ed
the following summary of the basic facts underlying Petitioner’s conviction:
The Federal Bureau of Investigation, Immigration and Customs
Enforcement, and the Bureau of Alcohol, Tobacco, Firearms and
Explosives conducted a joint investigation into Balkan criminal
enterprises. The investigation used undercover officers to infiltrate
criminal activities, particularly the trafficking of drugs, weapons,
and other contraband.
[Petitioner] is a naturalized United States citizen originally
from Serbia. At the time of his arrest, he worked as the
superintendent of an apartment building and operated a coffee shop
in New Jersey. [Petitioner] met two undercover agents during the
investigation. At one meeting in June 2008, [Petitioner] gave one
of the undercover agents a gun and offered to assist in any “violent
act” the recipient needed to have done. In July of the same year,
[Petitioner] and his cohort, Rasim Corhamzic, sold 5,100 pills of
ecstasy to an undercover agent for $ 21,480. At the same meeting,
[Petitioner] paid the undercover agent $ 2,500 for contraband
cigarettes. In August 2008, [Petitioner] and Corhamzic again sold
the undercover agent what they believed was ecstasy and Oxycontin
or $ 65,620. Subsequent chemical analysis showed that some of
the purported ecstasy pills in fact contained methamphetamine
hydrochloride. Corhamzic had smuggled the drugs into the United
States from Canada by noncommercial airplane.
[Petitioner] was indicted on five counts: (1) from January
2008 through March 14, 2009, conspiracy to distribute and to
possess with intent to distribute controlled substances including
methamphetamine and ecstasy; (2) from January 2008 through
March 14, 2009, conspiracy to import controlled substances
including methamphetamine and ecstasy from Canada to New
Jersey; (3) possession with intent to distribute methamphetamine on
July 14, 2008; (4) possession with intent to distribute
methamphetamine from August 18-19, 2008; and (5) possession
with intent to distribute ecstasy on July 14, 2008. [Petitioner]
entered into a plea agreement and pled guilty to Count Four of the
indictment.
[Petitioner]’s base offense level was determined to be 38.
Three separate two-level enhancements were applied for possessing
a firearm during the offense, unlawfully importing a controlled
substance on a noncommercial aircraft, and importing
methamphetamine.
A three-level reduction was granted for
acceptance of responsibility resulting in a total offense level of 41.
2
[Petitioner) sought a variance based on his ignorance that the
drugs were methamphetamine, his self-proclaimed minor role in the
conspiracy, and the 18 U.S.C. § 3553(a) factors. The District Court
denied his requests. It first noted that the non-mandatory guideline
range was properly calculated. It then stated that [Petitioner]’s
offense was very serious and required deterrence regardless of his
ignorance about the product. The District Court also noted that the
nature and quantity of drugs and the nature and extent of the
conspiracy required a serious sentence. It further stated that
[Petitioner] played more than a minor role in the transaction and
conspiracy. While accepting that some of [Petitioner’s] statements
at sentencing mitigated towards a sentence at the bottom of the
range, the District Court ultimately declared that the facts of the case
did not warrant a variance below the mandatory minimum.
The District Court subsequently sentenced [Petitioner] to
324 months imprisonment, on the low end of his guideline range.
However, after the two-level increase for importation of
methamphetamine was found inapplicable, resulting in a lower
guideline range of 262-327 months, [Petitioner’s] sentence was
reduced to 262 months.
United States v. Kolasiniac, 497 F. App’x 216, 217-18 (3d Cir. 2012).
Petitioner appealed,
arguing that this Court erred by “not meaningfully considering his request for a downward
variance.” Id. at 218. The Third Circuit affirmed Petitioner’s sentence on September 20, 2012,
finding that no procedural error had occurred, and that this Court had properly considered and
rejected Petitioner’s requests for a downward departure. Id. at 218-19.
In March 2013, Petitioner filed his current motion to vacate. (ECF No. 1). During the
pendency of that motion, Petitioner also filed a motion for a reduction of his sentence based on
changes made to the Sentencing Guidelines pursuant to 18 U.S.C.
§ 3852(c)(2), colloquially
known as a drug minus two motion. (ECF No. 26, Docket No. 09-307 at ECF no. 51). On
February 4, 2016, this Court granted Petitioner’s drug minus two motion and resente
nced
3
Petitioner, reducing his sentence to 210 months imprisonment. (Docket No. 09-307 at
ECF No.
53).
II. DISCUSSION
A.
Legal Standard
A prisoner in federal custody may file a motion pursuant to 28 U.S.C.
§
2255 challenging
the validity of his or her sentence. Section 2255 provides, in relevant part, as follow
s:
A prisoner in custody under sentence of a court established by Act
of Congress claiming the right to be released upon the ground that
the sentence was imposed in violation of the Constitution or laws of
the United States, or that the court was without jurisdiction to
impose such a sentence, or that the sentence was in excess of the
maximum authorized by law, or is otherwise subject to collateral
attack, may move the court which imposed the sentence to vacate,
set aside or correct the sentence.
28 U.S.C.
§
2255. Unless the moving party claims a jurisdictional defect or a constitutional
violation, to be entitled to relief the moving party must show that an error of law or fact constit
utes
“a fundamental defect which inherently results in a complete miscarriage of justice,
[or] an
omission inconsistent with the rudimentary demands of fair procedure.” United States
v. Horsley,
599 F.2d 1265, 1268 (3d Cir. 1979)(quotingHillv. United States, 368 U.S. 424,429(1962
)), cert.
denied 444 U.S. 865 (1979); see also Morelli v. United States, 285 F. Supp. 2d 454, 458-59
(D.N.J.
2003).
4
B. Analysis
1. An Evidentiary Hearing is not required in this matter
A district court need not hold an evidentary hearing on a motion to vacate where “the
motion and files and records of the case conclusively show that the prisoner is entitled to no
28 U.S.C.
§
relief.”
2255(b); United States v. Booth, 432 F.3d 542, 545 (3d Cir. 2005); United States v.
Day, 969 F.2d 39, 41-42 (3d Cir. 1992). “Where the record, supplemented by the trial
judge’s
personal knowledge, conclusively negates the factual predicates asserted by the petitio
ner or
indicate{s] that petitioner is not entitled to relief as a matter of law, no hearing is required.”
Judge
v. United States, 119 F. Supp. 3d 270, 280 (D.N.J. 2015); see also Government of Virgin
Islands
v. Nicholas, 759 F.2d 1073, 1075 (3d Cir. 1985); see also United States v. Tuyen
Quang Pham,
587 F. App’x 6, 8 (3d Cir. 2014); Booth, 432 F.3d at 546. For the reasons set forth below,
all of
Petitioner’s claims except his assertion that the drug quantity attributed to him at senten
cing was
overstated are without merit based on the record before this Court, and as such an
evidentiary
hearing is not required as to those claims.
As to Petitioner’s claim that the drug quantity
calculation in the PSR was improper, this Court will grant the Petition as to that claim
because the
Government has conceded that the calculation contained in the PSR contains
an error which
overstated the quantity attributable to Petitioner, and no evidentiary hearing is necess
ary to resolve
that claim. (See ECF No. 18 at 7-8).
2.
Petitioner’s claim that he was sentenced using an improper drug quantity calcula
tion
Petitioner’s chief claim is that the drug quantity calculation contained in Petitio
ner’s PSR
was erroneous and that his resulting sentence was therefore harsher than that which
would have
resulted from the correct calculation.
In its response to Petitioner’s
5
§
2255 motion, the
Government concedes that “[t]he PSR, the parties, and the Court treated [the drug quanti
ties
Petitioner sold to undercover agents] as Methamphetamine (Actual). However, a review of
the
lab reports has revealed that these were accurate quantities of methamphetamine, but not “actua
l”
or “pure” methamphetamine. The result of this error is that rather than a conversion of one
gram
of methamphetamine (actual) into 20 kilograms of marijuana equivalent, the correct conver
sion
would have been one gram of methamphetamine to 2 kilograms of marijuana equivalent”
which
should have resulted in a lower base offense level for Petitioner. (ECF No. 18 at 7-8). Becaus
e
the Government has conceded that Petitioner was sentenced using an improper drug weight
calculation, this Court will grant Petitioner’s
§ 2255 motion only to the extent that Petitioner
asserts that he must be resentenced using the appropriate calculation.
Because this Court will grant Petitioner’s motion to the extent that he seeks resentencing
using the appropriate drug weight calculation, an additional complication arises, howev
er. As
noted above, after the filing of this motion and after the Government had respon
ded thereto,
Petitioner filed a motion in his criminal case seeking a reduction in his senten
ce based on
amendments to the sentencing guidelines applicable to certain controlled substance offense
s. As
a result of that motion, Petitioner was resentenced in February 2016 to a reduce
d sentence.
(Docket No. 09-307 at ECF No. 53). As Petitioner has been resentenced, it is not clear
at this
time the extent to which the February 2016 resentencing has cured the defect in
Petitioner’s
sentence caused by the overstated drug quantity. As such, this Court will order the parties
to brief
this matter so that this Court can determine whether a resentencing is still necess
ary and the
appropriate guidelines range applicable to Petitioner in the event that this defect has
not been cured
by Petitioner’s February 2016 resentencing.
6
3. Petitioner’s Ineffective Assistance of Counsel Claims
In his motion, Petitioner presents several claims in which he asserts that his trial and
appellate counsel were constitutionally ineffective. The standard governing such claims
is well
established:
[c)laims of ineffective assistance are governed by the two-prong test
set forth in the Supreme Court’s opinion in Strickland v.
Washington, 466 U.S. 668 (1984). To make out such a claim under
Strickland, a petitioner must first show that “counsel’s performance
was deficient. This requires [the petitioner to show) that counsel
made errors so serious that counsel was not functioning as the
‘counsel’ guaranteed by the Sixth Amendment.” Id. at 687; see
also United States v. Shedrick, 493 F.3d 292, 299 (3d Cir. 2007).
To succeed on an ineffective assistance claim, a petitioner must also
show that counsel’s allegedly deficient performance prejudiced his
defense such that the petitioner was “deprive{d] of a fair trial
whose result is reliable.” Strickland, 466 U.S. at 687; Shedrick,
493 F.3d at 299.
In evaluating whether counsel was deficient, the “proper
standard for attorney performance is that of ‘reasonably effective
assistance.” Jacobs v. Horn, 395 F.3d 92, 102 (3d Cir. 2005). A
petitioner asserting ineffective assistance must therefore show that
counsel’s representation “fell below an objective standard of
reasonableness” under the circumstances. Id. The reasonableness
of counsel’s representation must be determined based on the
particular facts of a petitioner’s case, viewed as of the time of the
challenged conduct of counsel. Id. In scrutinizing counsel’s
performance, courts “must be highly deferential
a court must
indulge a strong presumption that counsel’s conduct falls within the
wide range of reasonable professional assistance.” Strickland, 466
U.S. at 689.
.
.
.
Even where a petitioner is able to show that counsel’s
representation was deficient, he must still affirmatively demonstrate
that counsel’s deficient performance prejudiced the petitioner’s
defense. Id. at 692-93. “It is not enough for the defendant to show
that the errors had some conceivable effect on the outcome of the
7
proceeding.” Id. at 693. The petitioner must demonstrate that
“there is a reasonable probability, 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.” Id. at 694; see also Shedrick, 493 F.3d
at 299. Where a “petition contains no factual matter regarding
Strickland’s prejudice prong, and [only provides]
unadorned
legal conclusion[s]
without supporting factual allegations,” that
petition is insufficient to warrant an evidentiary hearing, and the
petitioner has not shown his entitlement to habeas relief. See
Palmer v. Hendricks, 592 F.3d 386, 395 (3d Cir. 2010). “Because
failure to satisfy either prong defeats an ineffective assistance claim,
and because it is preferable to avoid passing judgment on counsel’s
performance when possible, [Strickland, 466 U.S. at 697-98],”
courts should address the prejudice prong first where it is dispositive
of a petitioner’s claims. UnitedStates v. Cross, 308 F.3d 308, 315
(3d Cir. 2002).
.
.
.
.
.
.
Judge, 119 F. Supp. 3d at 280-81. Here, Petitioner raises the following ineffective assista
nce
claims: that counsel was ineffective in failing to challenge this Court’s imposi
tion of fines at
sentencing and that appellate counsel was ineffective in failing to argue that this Court
improperly
applied a firearms enhancement on direct appeal.’
In his pro se motion to vacate, Petitioner also presented a claim in which he asserte
d that counsel
was defective in failing to file a motion to dismiss the indictment under
the Speedy Trial Act.
(ECF No, 1 at 15-16). Petitioner, however, chose to withdraw that claim
in his reply brief,
conceding the point based on the Government’s arguments in its response.
(ECF No. 19 at 2).
As such, this Court will deem this claim withdrawn and will not address it
further in this opinion.
8
a. Petitioner’s claim that counsel failed to challenge the fine levied against Petitioner at
sentencing
Petitioner claims that counsel was constitutionally ineffective in failing to challenge the
imposition of a $ 25,000 fine upon Petitioner at sentencing.
“The plain and unambiguous
language of § 2255 indicates that the statute only applies to ‘[a] prisoner in custody.
.
.
claiming
the right to be released.” United States v. Trimble, 12 F. Supp. 3d 742, 745 (E.D. Pa. 2014).
Restitution orders and fmes, however, are not sufficient restraints on the liberty of a crimin
al
offender to constitute ‘custody.’ Id.; see also Obado v. New’ Jersey, 328 F.3d 716, 718 (3d Cir.
2003); United States v. Ross, 801 F.3d 374, 380-81 (3d Cir. 2015). As a fine or restitution order
does not qualify as “custody”, and because
§ 2255 is available only to those seeking release from
custody, relief under the statute is not available to those only seeking to challenge fines
or
restitution orders. See Ridley v. Smith, 179 F. App’x 109, 111 (3d Cir. 2006) (quoting United
States v. Kramer, 195 F.3d 1129, 1130 (9th Cir. 1999) (collecting cases)); see also Kamin
ski v.
United States, 339 F.3d 84, 87-89 (2d Cir. 2003). A claim challenging a fine or restitu
tion order
likewise does not become cognizable simply because it is included within a petition which
does
present cognizable claims challenging an inmate’s physical custody. Trimble, 12 F. Supp.
3d at
745-46; Kaminski, 339 F.3d at 89. As the Second Circuit explained in Kaminski:
Habeas lies to allow attacks on wrongfiil custodies. There is
therefore no reason why the presence of a plausible claim against a
custodial punishment should make a noncustodial punishment more
amenable to collateral review than it otherwise might be.
Collateral relief from noncustodial punishments is not made more
readily available to a petitioner just because that petitioner happens
at the time to be subject also to custodial penalties. And, the mere
fact that the sentencing court chose to impose incarceration on a
defendant in addition to restitution does not, as to the restitution
.
9
order, distinguish that defendant from someone who, having been
convicted, received a punishment that did not include any custodial
element
339 F3d at 89.
That the claim challenging the fine or restitution order is presented as an
ineffective assistance of counsel claims does not change this result. Trimble,
12 F. Supp. 3d at
746; see also Shephard v. United States, 735 F.3d 797, 798 (8th Cir. 2013); Kaminski, 339
F.3d at
85 n. 1; United States v Thiele, 314 F.3d 399, 402 (9th Cir. 2002); Smullen v. United
States, 94
F.3d 20,26(1st Cir. 1996); United States v. Segler, 37 F.3d 1131, 1137 (5th Cir.
1994); but see
Weinberger v. united States, 268 F.3d 346, 351 n. 1 (6th Cir. 2001) (permitting
a petitioner to
challenge a restitution order under
§ 2255 based on a meritorious ineffective assistance of counsel
claim). As Petitioner’s claim that his counsel failed to argue his inability to pay
a fine addresses
only the fine imposed and does not challenge Petitioner’s custody, that claim is
not cognizable
under
§ 2255, and as such must be denied, regardless of the fact that it is couched as an ineffective
assistance of counsel claim and despite the presence of cognizable challenges
to Petitioner’s
physical custody presented in his
§ 2255 motion. Trimble, 12 F. Supp. 3d at 746; Kaminski, 339
F.3d at 89.
b. Petitioner’s claim that counsel failed to challenge this Court’s applica
tion of the firearm
enhancement on appeal
In his final claim, Petitioner asserts that counsel was constitutionally ineffec
tive on direct
appeal in failing to challenge the application of the firearm enhancement to Petitio
ner’s sentence
under United States Sentencing Guidelines
§ 2D 1.1 (b)( 1). As the Third Circuit has explained:
When a defendant is convicted of a drug trafficking offense,
10
U.S.S.G. § 2D1.1(b)(l) provides that “[i]f a dangerous weapon
(including a firearm) was possessed,’ the sentencing calculation
should be ‘increase[d] by 2 levels.” The commentary to this
Guideline explains that the enhancement ‘reflects the increased
danger of violence when drug traffickers possess weapons.”
U.S.S.G. § 2D1.1 cmt. n. 11. According to the commentary, “[t]he
enhancement should be applied if the weapon was present, unless it
is clearly improbable that the weapon was connected with the
offense.” Id. (emphasis added). To illustrate when it might be
clearly improbable that a weapon is connected to the offense, the
commentary explains that “the enhancement would not be applied if
the defendant, arrested at the defendant’s residence, had an unloaded
hunting rifle in the closet.” Id. We have noted that the clearly
improbable standard presents a significant hurdle that “defendants
have rarely been able to overcome.” Drozdovski, 313 F. 3d [819,
822 (3d Cir. 2002)].
“[T]he question of whether it is clearly improbable that a gun
was used in connection with a drug offense is a fact-bound
determination. [Id. at 823]. We have identified four factors
relevant to this inquiry:
(1) the type of gun involved, with clear improbability less
likely with handguns than with hunting rifles, (2) whether
the gun was loaded, (3) whether the gun was stored near the
drugs or drug paraphernalia, and (4).. whether the gun was
accessible.
.
The government bears the burden of proving by a
preponderance of the evidence that a sentencing enhancement
applies. See United States v. Grier, 474 F.3d 556, 568 (3d Cir.
2007) (en banc). With respect to § 2D1 .1(b)(1), the government
must show only that the defendant “possessed” a dangerous weapon,
and it can do so by establishing “that a temporal and spacial relation
existed between the weapon, the drug trafficking activity, and the
defendant.” United States v. Ruiz, 621 F.3d 390, 396) (5th Cir.
2010) (quoting United States v. Cisneros-Gutierrez, 517 F.3d 751,
764-65 (5th Cir. 2008)). Once the government makes out a prima
facie showing that the defendant. possessed a weapon, the burden
of production shifts to the defendant to demonstrate that the
connection between the weapon and the drug offense was “clearly
.
11
.
improbable.” See United States v. Greeno, 679 F.3d 510, 514 (6th
Cir. 2012), cert. denied,
U.S.
133 S. Ct. 375 [(2012). We
emphasize that the ultimate burden of proving the applicability of
the enhancement remains at all times with the government. But
once the government has made a prima facie showing that the
defendant possessed the weapon, the enhancement should be
applied unless the defendant can demonstrate that the drug-weapon
connection was clearly improbable.
---
---,
United States v. Napolitan, 762 F. 3d 297, 307-09 (3d Cir. 2014).
In Petitioner’s case, the Government argued that the
§ 2D 1.1 (b)( 1) enhancement applied
based on several discrete incidents which occurred during Petitioner’s dealings with
undercover
officers. First, Petitioner gave a handgun to an undercover officer during a June 5,
2008, meeting
in which Petitioner apparently offered to help the officer, whom Petitioner believed was
a drug
distributor, with any violent acts the officer needed committed. (See excerpt from Govern
ment’s
Sentencing Memo, ECF No. 18 at 8-9; Sentencing Transcript, Docket No. 09-307
at ECF No. 41
at 12-14). Next, Petitioner met with another undercover officer and a co-conspirato
r on February
5, 2009, and during that meeting showed the officer both his handgun and the hollow point
bullets
contained within while discussing future drug shipments. (Id.). Third, Petitio
ner possessed a
handgun which was found under his pillow in his home when he was arrested.
(Id.). Petitioner
also apparently offered to sell an undercover officer an AK-47. (Id.).
Petitioner doesn’t actually dispute that he possessed guns on these occasions
in claiming
that counsel was ineffective, but rather asserts that because he only pled guilty
to a specific instance
of possession with intent to distribute methamphetamine, he cannot be held
accountable for the
fact that he clearly possessed handguns during other meetings with the underc
over officers related
to that sale because Petitioner did not plead guilty to the conspiracy
charges.
12
Specifically,
Petitioner contends that he only pled guilty to possession with intent to distribute during August
18-19, 2008, and the incidents in which he had a gun occurred during other meetings related
to his
drug trafficking activities, and as such his possession of a gun at those times and when he
was
arrested was too attenuated from the possession charge to warrant the application of the firearm
enhancement.
Petitioner previously raised this argument at sentencing. During sentencing, this Court
rejected that argument, finding that several firearms were “involved through the commission
of
this offense at different stages, including [on] the day of his arrest.” (Docket No. 09-307
at ECF
No. 41 at 40). Then, as now, Petitioner’s argument is too clever by half. Although Petitio
ner is
correct that he pled guilty to a single instance of possession rather than to a conspiracy charge,
his
argument essentially attempts to sever his possession of methamphetamine with the intent
to sell
it to the undercover agents from all of the set-up meetings with the agents which resulte
d in that
possession and sale of methamphetamine. Here, Petitioner provided two different handguns
to
the undercover agents on separate dates and possessed at least one more handgun where it could
be easily accessed at the time of his arrest. Clearly, these weapons had a temporal relatio
nship
with the act involved here, the possession of the methamphetamine with the intent to sell
it to the
officers. The weapons also had a spacial relationship as well in so much as Petitioner
possessed
one of the handguns through the time of his arrest, and brought the others in order to
give them to
the undercover agents during the meetings which culminated in the sale of the metham
phetamine.
Petitioner splits the hair altogether too finely in attempting to sever his continued
possession of
the gun seized during his arrest and provision of two other guns during set-up
meetings with
undercover officers from his acquiring of and sale of methamphetamine to the
officers. As the
13
various stash house cases make abundantly clear, that a weapon is not used in the commission
of
an offense is of no moment so long as a weapon was possessed in relation to the offense. See,
e.g., Uiited States v. Torres, 529 F. App’x 303, 305 (3d Cir. 2013); see also United States
v.
McDonald, 121 F.3d 7, 10 (1st Cir 1997) (so long as a weapon is in a location where
it was
available to be used to protect either the participants, drugs, or money involed in illegal activit
y
related to the drug trafficking actions of a defenant, the enhancement is appropriate). The weapo
n
possessed in Petitioner’s home was readily available to him through the time of his arrest,
and
Petitioner clearly brought at least two other guns to meetings related to his drug traffick
ing and
even provided those guns to the undercover agents to whom he was providing the drugs and offered
to aid them in engaging in violent conduct. Clearly, the weapon possession enhancement
was
appropriate in this case.
Thus, turning to the question at hand, it is clear that counsel was not constitutiona
lly
ineffective in failing to raise this argument, which he made at sentencing, on direct appeal
. While
the Strickland standard does apply to the actions of appellate counsel, see Smith v. Robbin
s, 528
U.S. 259, 285 (2000), “it is a well established principle.
.
.
that counsel decides which issues to
pursue on appeal,” Sistrunk v. Vaughn, 96 F.3d 666, 670 (3d Cir. 1996), and appella
te counsel
need not raise every nonfrivolous claim a defendant desires to make. Jones v. Barnes
, 463 U.S.
745, 751 (1983). As the keystone of effective appellate advocacy is the winnowing out
of weaker
claims in favor of those more likely to succeed, id.at 753; Smith v. Murray, 477 U.S.
527, 536
(1986). the Supreme Court has held that “[g]enerally, only when ignored issues
are clearly
stronger
than those presented, will the presumption of effective assistance of [appell
ate] counsel be
overcome.” See Robbins, 528 U.S. at 288 (quoting Gray v. Greer, 800 F.2d 644,
646 (7th Cir.
14
1986)).
As this Court has now explained, Petitioner’s assertion that the §2D 1.1 (b)( 1) enhanc
ement
should not have applied to him is without merit. As such, that claim is not
“clearly stronger” than
the claims counsel chose to raise on direct appeal, and Petitioner has therefore
failed to show that
appellate counsel was deficient for failing to raise this claim on direct
appeal.
Petitioner’s
assertion that appellate counsel was constitutionally ineffective is thus withou
t merit, and provides
no basis for
§ 2255 relief.
IlL CERTIFICATE OF APPEALABILITY
Pursuant to 28 U.S.C.
§ 2253(c) the petitioner in a § 2255 proceeding may not appeal from
the final order in that proceeding unless he makes “a substantial showing
of the denial of a
constitutional right.” “A petitioner satisfies this standard by demonstrating
that jurists of reason
could disagree with the district court’s resolution of his constitutional claims
or that jurists could
conclude that the issues presented here are adequate to deserve encourageme
nt to proceed further.”
Miller-El v, Cockrell, 537 U.S. 322, 327 (2003). As all of Petitioner’s claims
other than his claim
regarding the drug quantity calculation used at sentencing are clearly withou
t merit as discussed
above, jurists of reason could not disagree with this Court’s resolution
of those claims, and it is
clear that Petitioner’s non-drug quantity claims are inadequate to deserv
e further encouragement.
Petitioner will therefore be denied a certificate of appealability as to
his non-drug quantity claims.
15
IV. CONCLUSION
For the reasons stated above, Petitioner’s motion will be GRANTED solely as to his claim
that the drug quantity calculation used to determine his sentence was improper and this Court will
order the parties to brief the issue of whether a resentencing is necessary under the circumstances
,
Petitioner’s remaining
§ 2255 claims will be DENIED and Petitioner will be DENIED a certificate
of appealability as to his non-drug weight claims. An appropriate order follows.
Hoj4áse L. mares,
U41ted States District Judge
16
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