BATTLE v. UNITED STATES OF AMERICA

Filing 40

OPINION. Signed by Judge Jose L. Linares on 3/22/16. (DD, )

*NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

TERRY BATTLE,
Civil Action No. 13-2024 (JLL)
Petitioner,
v.

OPINION

UNITED STATES OF AMERICA,
Respondent.

LINARES, District Judge:

Presently before the Court is Petitioner Terry Battle's motion to vacate, set aside, or correct
his sentence brought pursuant to 28 U.S.C. § 2255. (ECF No. 1).

Judge Hochberg denied

Petitioner's§ 2255 motion on or about March 26, 2014. (ECF Nos. 10-11). Petitioner thereafter
filed a motion pursuant to Federal Rules of Civil Procedure 59( e) and 60(b) to reopen this matter
and for relief from Judge Hochberg's order (ECF Nos. 13, 15, 18), which this Court granted in
part and denied in part on June 30, 2015. (ECF Nos. 23-24). This Court held an evidentiary
hearing on Petitioner's sole remaining § 2255 claim on December 8, 2015.

(ECF No. 37).

Following the hearing, both the Government and Petitioner filed briefs in this matter on January
13, 2016. (ECF Nos. 38-39). For the following reasons, this Court will deny Petitioner's sole
remaining claim for relief in his § 2255 motion, and will deny Petitioner a certificate of
appealability.

I. BACKGROUND

As the factual background of Petitioner's case has been laid out both in this Court's order

denying Petitioner's initial § 2255 petition and in this Court's order granting in part Petitioner's
Rule 59(e) motion (ECF Nos. 10, 23), this Court will not summarize in full the factual and
procedural background of this case, but will instead briefly discuss the testimony elicited in the
evidentiary hearing held in this matter on December 8, 2015. (ECF No. 37). Two witnesses
testified during the hearing, Petitioner and his trial counsel, Zilka Saunders. This Court will
discuss the testimony of each in tum.
During his testimony, Petitioner first recounted his version of the events which followed
from his arrest, including his assertion that Government agents isolated him and threatened to bring
charges against his wife, who was on vacation at the time of his arrest, to ensure his cooperation
and force him to give a statement. (Document 1 attached to ECF No. 38 at 4-6). Petitioner
further testified that, in order to protect his wife and to avoid being tried as the leader of the drug
trafficking organization with which he worked, Petitioner agreed to help the Government perform
a sting operation which resulted in the arrest of one of Petitioner's co-conspirators in the drug
organization. (Id. at 6-7). Petitioner thereafter stated that he pled not guilty at his arraignment
and was taken to jail, where he was met by counsel, despite not having called or hired her in
advance. (Id.).
Petitioner testified at length that the reason counsel became involved so proactively, and
the reason she kept in constant contact with him throughout his incarceration, trial, and appeal was
because Petitioner and Ms. Saunders were engaged in an at least semi-romantic relationship prior
to and during Ms. Saunders' representation of Petitioner. (Id. at 7-9). Petitioner testified that he
had met Ms. Saunders after being introduced to her at a club by a friend of his who worked in the
same law office as Ms. Saunders. (Id. at 7-8). Petitioner claims the two became friendly, and

2

ultimately met up twice the following day, resulting in the two of them starting a relationship
which included several meals and an evening of dancing. (Id. at 8).

Essentially, Petitioner

claimed that counsel came to see him at jail without being called because she had been looking for
him after he stopped contacting her following his arrest. (Id. at 8-9).
Petitioner then asserted that, following that first meeting, Ms. Saunders spoke with her
employer, Paul Bergrin, and Bergrin offered to have his office represent Petitioner for an agreed
upon sum.

(Id. at 11 ).

Petitioner also stated that Saunders told him that Bergrin thought

Petitioner's was a winnable case because his treatment following his arrest was "a clear violation
of [Petitioner's] constitutional rights." (Id.). Petitioner said that his decision to hire Saunders as
his attorney stemmed from her assertion that he could "beat this charge."

(Id. at 13).

Specifically, Petitioner claimed that counsel gave him the following advice:
from the beginning, she said that we [were] going to have to file a
motion ... to suppress the evidence, and that the motion was going
to be based on the violation of my constitutional rights, the fact that
they held me without making [any] phone calls. The fact that they
had ripped up [a form asserting that Petitioner didn't want to speak
with agents.] [W]hen [Petitioner] told [Saunders] that they had
ripped up that first form, she said that was a violation also, that they
had no business . . . ripping up the first form that I signed, and that
everything else after that becomes null and void because they
violated ... two of my constitutional [rights].

She said the only thing I had to do [to get the statements
suppressed] was recant my statement ... and tell them I fabricated
the story, and that it wouldn't be good. It wouldn't hold up.
(Id. at 13). Petitioner further asserted that counsel told him that this motion would effectively

render all of his statements and his cooperation with the Government in setting up his coconspirator inadmissible against him. (Id.).
3

As for the plea agreement that was offered to Petitioner, Petitioner asserts that counsel only
discussed it with him once in a cursory manner:
[Ms. Saunders] mentioned one thing about a plea one time to me,
and I don't remember whether it was ... sometime in September
[after his arrest]. She said the Government sent over some
ridiculous outrageous plea, some open-ended plea that I am not even
going to entertain.
I was like, some ridiculous open-ended plea, because I don't
know what an open-ended plea is - I didn't know what an openended plea was.
I was like, what are you talking about?
She was like, do you want to go home or do you want to go
to jail?
And she laughed.
And I said, I want to go home.
And then she said, all right, then don't worry about this plea.

The way [Saunders explained things to Petitioner, his motion
to suppress] was guaranteed.
See, the way she talked from every time that she came to see
me, she said, I was going home.
We sat ... and talked about the things that we [were] going
to do when I got out.
We talked about her family. I mean we sat there and talked
about my family, her kids, why her daughter ... chose to stay in
Rochester instead of moving with her to New Jersey.
We talked about even how the fact that she had to have a
hearing ... before she could even take a bar exam.
We talked about everything but ... every time I tried to talk

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about the case, she would throw that off, like you don't have to
worry about the case. The case is good. We don't have to worry
about the case.
(Id. at 13-14).

Petitioner further asserted that even after the suppression motion failed because the judge
elected not to make a decision in a "gray area" of the law, counsel continued to assert that they
could win at trial by attacking the credibility of the Government's witnesses. (Id. at 14-15).
Petitioner claimed that counsel had continued to assure him that he would go home, never
developed a back-up plan, and that counsel never advised him as to sentencing exposure or the
effect Petitioner's considerable state criminal history would have on sentencing or his credibility
at trial. (Id. at 14-15). Petitioner also claimed that counsel never showed him the written plea
agreement, and only ever mentioned it the one time discussed above. (Id. at 15). Petitioner then
testified that had counsel fully explained the plea, as his habeas counsel had done, he would have
accepted the offered plea agreement. (Id. at 16). In the remainder of his direct examination
testimony, Petitioner further claimed that his friendly or romantic relationship with counsel
continued through trial and during his appeal process, suggesting that the hundreds of e-mails sent
during the appeal process and counsel's placement of money into his prison account showed the
nature of their relationship. (Id. at 16-17). On cross-examination, Petitioner admitted that he
had lied under oath during the suppression hearing when he claimed that he had never been
involved with the drug trafficking organization, and when he claimed that he had provided false
information to the Government. (Id. at 20-21 ).
Petitioner's trial counsel, Zilka Saunders, also testified at the evidentiary hearing. Ms.
Saunders testified that she graduated from law school in 2000, has been a member of the New

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Jersey and New York Bars, and has never been disbarred. (Id. at 26). Ms. Saunders further
stated that she is currently working for the Corporation Counsel of the City of Newark, and
previously served as a Newark Municipal Judge for several months. (Id.). Ms. Saunders testified
that, following working at several law firms doing insurance defense and criminal work, she
worked for the Law Office of Paul W. Bergrin for approximately two years between either the end
of2006 through Spring 2008 or between early 2007 and early 2009. (Id.at 27). She further stated
that, during her time with Bergrin's office, she handled mostly criminal cases, and had tried four
criminal matters in the state courts before representing Petitioner. (Id.). Counsel also stated that
she had worked on over one hundred criminal cases, and had done trial preparation in
approximately fifty cases prior to becoming Petitioner's attorney. (Id.).
Ms. Saunders thereafter testified as to her understanding of the plea process in federal
court, including the United States Sentencing Guidelines and how criminal history affects those
guidelines, as well as the way in which cooperation agreements and resulting sentencing motions
under Guidelines 5Kl.l work. (Id. at 28-29). She then testified that, in explaining agreements
to a client, she would communicate the nature of the offer to the client, ensure that they had a "real
understanding" of the terms of the agreement, and would explain to them sentencing exposure and
discuss the evidence against them and the benefits of a guilty plea. (Id. at 29). Ms. Saunders
testified that although she would recommend whether to take a plea or not to a client, it was
ultimately the client's decision whether to accept or reject an offer. (Id.). She further stated that,
where she would recommend not taking an agreement, she would explain the agreement and then
tell the client why she thought it should be rejected based on the facts of the case. (Id. at 30).
Ms. Saunders also stated that she would at times recommend both guilty pleas and cooperation

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with the Government where the situation warranted. (Id.).
Counsel then testified as to how she became involved in Petitioner's case. Ms. Saunders
admitted that she and Petitioner had met at a club near the Bergrin office. (Id. at 31 ). She stated
that they had a drink and talked about her potentially handling a post-conviction matter for
Petitioner's son. (Id.).

Although she admitted that there was some flirtation involved, Ms.

Saunders stated that she never dated Petitioner, nor expressed an intention to do so, and only saw
Petitioner twice at the club and did not otherwise see him socially, date him, or kiss him. (Id.).
Ms. Saunders further testified that she became involved in Petitioner's case after Petitioner's friend
came to the Bergrin office looking for him, and asked her to find him, apparently with Bergrin's
approval. (Id. at 31-32). She then stated that she learned he was in custody and went to see him
at the jail, in the interests of finding out whether Petitioner wished to hire the Bergrin firm. (Id.
at
Ms. Saunders testified that, after she and the Bergrin firm were hired by Petitioner, she
visited him frequently in jail to discuss his case and build the attorney-client relationship, and not
out of some romantic interest. (Id.). She also stated that she did this to help build her reputation
with others in the jail through word of mouth. (Id.). Ms. Saunders then stated that, although
Petitioner initially told her he never made a statement to the Government, she ultimately learned
of his statement and cooperation with the Government. (Id. at 32-33). Based on the information
regarding Petitioner's cooperation she gleaned from both the Government and from confronting
Petitioner, Ms. Saunders stated that she believed that the Government's case against Petitioner was
"extremely strong." (Id. at 34). Based on the strength of the case, she further stated that she
never told Petitioner she could guarantee success on a suppression motion, nor that his was a

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winnable case. (Id.). Instead, she testified that she believed that he was "dead in the water" from
the outset. (Id.).
Based on her perspective on the case, Ms. Saunders testified that she did provide Petitioner
with the details of the plea agreement that was offered by the Government and recommend that he
take

(Id. at 35). She further stated that she explained to him that the case against him was

very strong, the differences between criminal trials in the federal and state systems and how pleas
in the federal system were different and involved more judicial discretion at sentencing than those
in the state courts. (Id.). Ms. Saunders testified that she also told him that, if he went to trial and
lost, Petitioner, based on his criminal history, would likely face a sentence of thirty years to life,
whereas the plea agreement contained a recommended range of 151 to 188 months. (Id. at 3435). Based on the strength of the Government's case and the potential for a much more severe
sentence following trial, Ms. Saunders concluded as follows:
Even before I received the plea agreement, I had an opinion that
[Petitioner's] was a case that ... was to be pled.
When I talked to [Petitioner] about pleading, this again was
a conversation about the real numbers because you had a range.
You had ... no definitive (sentence], and he was used to pleading
with [a definite sentence] like in the state system, and so he asked
me ... ifhe were to plead ... what kind of sentence would the Judge
likely give him.
[Counsel then explained that she discussed the likely sentence Judge
Cavanaugh would give under the plea with Paul Bergrin, who
provided her with an estimate of seventeen years, which would
include a slight upward departure from the plea based on Petitioner's
criminal history and probationary status at the time of the crime.]
I communicated to [Petitioner Bergrin's estimate of] 17
years .... [T]hat wasn't acceptable to [Petitioner].
We talked about cooperation, potential cooperation,

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particularly like a proffer, and he was not interested in cooperating
any further at all ... or even getting involved in a proffer session.
He communicated to me that he ... was in fear because of
the level of cooperation he had already provided, that when he got
[a co-conspirator arrested, that co-conspirator] was not the head of
the chain. He was not the target. He was not who [the
Government] wanted. The fact that he had cooperated to that level
and now [the co-conspirator] was in custody, he had a fear of what
he had done.
[Counsel further explained that Petitioner feared for his safety
because of rumors spread by the man who had implicated him with
the Government, who had claimed that Petitioner had been the first
one to cooperate with the Government] .
. . . . [Petitioner] didn't want to take the exposure of potentially
getting 17 years. He wouldn't take the plea for 17. That was too
big a number for him to plead to. He would rather go to trial and
roll the dice than to take 17 years.
(Id.at
Ms. Saunders testified that she discussed the guidelines range in the plea agreement with
Petitioner, and explained that Petitioner was already subject to a mandatory minimum sentence,
and would likely face a lengthy sentence potentially up to the maximum sentence of life
imprisonment if convicted after a trial. (Id. at 37). Given the serious sentence Petitioner faced,
Ms. Saunders stated that she never told Petitioner the plea offer was outrageous or ridiculous, never
gave

offer short shrift, and actually negotiated at length to keep the agreement open longer than

initially offered so that she could attempt to convince Petitioner that a plea deal was in his best
interests. (Id.). Ms. Saunders specifically testified that she initially recommended the plea, did
not recommend choosing a suppression motion over the plea, and specifically told Petitioner that
he was facing thirty to life without the deal in place. (Id.). Counsel further testified that she went
to the jail "several times" and consistently recommended that Petitioner take the plea deal, even
9

taking the Guidelines manual to the jail to show Petitioner the difference in sentences between the
range offered in the deal and that which would apply if he were convicted at trial. (Id. at 38).
Ms. Saunders also testified that she explained to Petitioner the career offender enhancement, and
how it would contribute to a lengthy sentence ifhe lost at trial. (Id.). Ms. Saunders thus testified
that she fully explained the plea deal and potential sentencing exposure to Petitioner, that Petitioner
fully understood the deal and his exposure, and that Petitioner repeatedly rejected the deal over
her recommendations. (Id. at 41-42).
Ms. Saunders further stated that she only focused on the motion to suppress after Petitioner
had "already told [her] hands down that he wasn't ... interested in the plea." (Id. at 39-40). She
also testified that she did not tell Petitioner to recant his story, and that it was Petitioner himself
who provided her the information used in the suppression motion, and that Petitioner's testimony
during the suppression hearing matched what he told her - that the information in the
Government's reports as to his statement was "trumped up." (Id. at 40). She further stated that
she never told Petitioner to lie or give false testimony during that hearing. (Id.). Ms. Saunders
ultimately testified that, although she told Petitioner that there was a chance that the suppression
motion might succeed, she never guaranteed that success and specifically told Petitioner that he
could well lose both the motion and at trial. (Id. at 40-41 ).
On cross examination, Ms. Saunders denied any improper or romantic relationship with
Petitioner. (Id. at 46). She also stated that the money she had put in Petitioner's accounts was
given to her by Petitioner's girlfriend who Petitioner had involved in his criminal case, and who
wished to give the money anonymously so as not to arouse the suspicion of Petitioner's wife and
family. (Id.). Thus, Ms. Saunders denied the relationship, denied that she recommended that

10

Petitioner reject the plea deal, and that affirmed that she explained the deal and Petitioner's
exposure at length while repeatedly suggesting that Petitioner accept the plea deal, but that
Petitioner ultimately had no interest in the deal.

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 follows:
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

§ 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 oflaw or fact constitutes
"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

1265, 1268 (3d Cir. 1979) (quoting Hill v. 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).

11

8. Analysis
1. Credibility Determinations
This Court makes the following findings as to the credibility of the two witnesses who
testified during the evidentiary hearing in this matter. After having observed Petitioner's manner
and demeanor during testimony, as well as having heard his testimony and having considered
Petitioner's prior testimony and statements, this Court finds that Petitioner's testimony that counsel
did not fully discuss the offered plea agreement with him was not credible. Although Petitioner
was not completely incredible, Petitioner's testimony regarding his allegedly brief and conclusory
discussion of the plea agreement and merits of his case with counsel does not reflect the actual
nature

the plea agreement that was offered, and is directly contradicted by the more credible

testimony of Ms. Saunders. This Court thus finds not credible Petitioner's assertion that counsel
assured him that his case would be won and that the suppression motion was guaranteed to end in
Petitioner's favor.
On these issues - the discussion of the plea agreement and counsel's advice regarding the
likelihood of success on the suppression motion and at trial - this Court finds far more credible
the testimony of Ms. Saunders. Specifically, this Court credits Ms. Saunders' testimony that she
considered the Government's case against Petitioner very strong, that she initially believed that
Petitioner was "dead in the water" based on his extensive cooperation with the Government in
setting up one of his co-conspirators, and that she advised him to take the offered plea agreement
during several meetings with Petitioner. This Court also finds credible Ms. Saunders' testimony
that she believed Petitioner should plead guilty from the outset; that she fully discussed the
agreement with Petitioner including information as to sentencing exposure, the guidelines, and

12

Petitioner's criminal history; that she continued to attempt to persuade him to take the deal after
he initially expressed that he did not wish to plead guilty; and that Petitioner clearly told her that
he had no interest in accepting the plea deal. Thus, as to the sole issue presented here - the advice
counsel gave Petitioner regarding the offered plea agreement - this Court, having considered the
testimony, manner, and demeanor of the two witnesses, finds that Ms. Saunders was credible on
this issue, and Petitioner's claims regarding this issue were not credible. 1

2. Petitioner's Ineffective Assistance of Counsel Claim

Following this Court's granting in part of Petitioner's Rule 59(e) motion, only a single
claim remains in this matter: Petitioner's assertion that his trial counsel was constitutionally
ineffective because she improperly counseled him to reject a favorable guilty plea. The standards
applicable to such a claim are well established:
In Strickland v. Washington, [466 U.S. 668] (1984), the Supreme
Court established a two-part test to evaluate ineffective assistance
of counsel claims. The first part of the Strickland test requires
"showing that counsel made errors so serious that counsel was not
functioning as the 'counsel' guaranteed the defendant by the Sixth
Amendment." [Id. at 687] (internal citations omitted). The
second part specifies that the 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." [Id. at 694]. We have reasoned that
"there can be no Sixth Amendment deprivation of effective counsel
based on an attorney's failure to raise a meritless argument."
1

Because the issue of the nature of the relationship between Petitioner and Ms. Saunders is not
squarely before this Court and because a determination as to the nature of that relationship is
unnecessary to dispose of Petitioner's remaining claim, this Court need not, and will not, address
that issue here save to say that even if this Court did credit Petitioner's testimony over that of
counsel as to the nature of their relationship, it would not affect this Court's decision on the issue
of the advice counsel gave regarding the plea.
13

United States v. Sanders, 165 F.3d 248, 253 (3d Cir. 1999).

The year after deciding Strickland, the Supreme Court
slightly modified the prejudice prong of the Strickland test in
connection with guilty pleas. See Hill v. Lockhart, [474 U.S. 52]
(1985). "In order to satisfy the 'prejudice' requirement, the
defendant must show that there is a reasonable probability that, but
for counsel's errors, he would not have pleaded guilty and would
have insisted on going to trial." [Id. at 59] (internal quotations
omitted). The Court has re-emphasized that "[ d]efendants have a
Sixth Amendment right to counsel, a right that extends to the pleabargaining process." Lafler v. Cooper, --- U.S.---, 132 S.Ct. 1376,
1384[] (2012).
When addressing a guilty plea, counsel is required to give a
defendant enough information " 'to make a reasonably informed
decision whether to accept a plea offer."' Shotts v. Wetzel, 724
F.3d 364, 376 (3d Cir. 2013) (quoting United States v. Day, 969 F.2d
39, 43 (3d Cir. 1992)), cert. denied, --- U.S. ---, 134 S.Ct. 1340[]
(2014). We have identified potential sentencing exposure as an
important factor in the decisionrnaking process, stating that
"[k]nowledge of the comparative sentence exposure between
standing trial and accepting a plea offer will often be crucial to the
decision whether to plead guilty." Day, 969 F.2d at 43. In order
to provide this necessary advice, counsel is required "to know the
Guidelines and the relevant Circuit precedent. ... " United States v.
Smack, 347 F.3d 533, 538 (3d Cir. 2003).
United States v. Bui, 795 F.3d 363, 366-67 (3d Cir. 2015).

Even where a petitioner can show that counsel provided defective advice in counseling him
to reject a guilty plea, he must still show prejudice by showing that "but for his counsel's advice,
he would have accepted the plea and that [the] plea agreement would have result in a lesser
sentence." Rickard v. United States, No. 10-4089, 2011 WL 3610413, at *8 (D.N.J. Aug. 16,
201

accord Lafler v. Cooper, --- U.S.---,---, 132 S. Ct. 1376, 1384-85 (2012) (prejudice in this

context requires a petition to "show that there is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have been different ... [which i]n the

14

context of pleas [requires] a [petitioner] show the outcome of the plea process would have been
different with competent advice"). Petitioner must therefore show not only that he would have
taken the plea, but also that the Government would not have withdrawn the offer, that the Court
would have accepted the offer's terms, and that the ultimate sentence he would have received
would be less severe than that received following trial to establish prejudice. Lafler, 132 S. Ct. at
1385.
Having considered the testimony of the two witnesses, having found that Petitioner's
assertion that counsel told him to reject the plea is not credible, and having found that Ms. Saunders
was credible in her testimony that she fully explained the deal and comparative exposure to
Petitioner and recommended that he take the plea offer, this Court must conclude that Ms. Saunders
did not provide Petitioner with inadequate advice regarding the offered plea deal. Ms. Saunders'
credible testimony clearly indicates that she discussed with Petitioner the terms of the offered plea
agreement, including the stipulated offense level and the relevant guideline range, offered
Petitioner an estimate as the sentence he faced under the plea as a result, and explained to Petitioner
that he was facing a potential sentence of thirty years to life if he chose to go to trial and ultimately
lost. It is also clear from her credible testimony that she explained to Petitioner the potential
benefits of continued cooperation and the strength of the Government's case, and that counsel
never promised Petitioner an acquittal or guaranteed the success of a suppression motion in the
event that he did not plead guilty.

Counsel offered Petitioner competent advice and a full

explanation of the exposure Petitioner faced and the likelihood of conviction at trial, and repeatedly
attempted to convince Petitioner that taking the plea was in Petitioner's best interest. As such,
this Court must conclude that counsel was not constitutionally defective because she did not advise

15

Petitioner to reject the plea deal, and certainly did not do so without fully explaining the deal,
Petitioner's exposure, and the way in which the federal plea negotiation and sentencing systems
work.

Based on counsel's credible testimony, it is clear that Petitioner received sufficient

information to make a reasonably informed decision whether to accept the offered plea deal, and
chose to reject that deal out of his own fear of reprisal and belief that a sentence in or slightly
above the offered range was not acceptable to him.

As counsel gave Petitioner sufficient

information to make a reasonably informed decision as to the offered plea agreement, counsel's
performance was not constitutionally deficient, and Petitioner has failed to establish the first prong
of the Strickland test for ineffective assistance of counsel claims. Bui, 795 F .3d at 366-67. As
such, Petitioner's sole remaining claim must be denied. 2 Id.

III. 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 encouragement to proceed further."
Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). Because Petitioner's sole remaining claim of
ineffective assistance of counsel is clearly without merit in light of this Court's credibility

2

Counsel's credible testimony also establishes that Petitioner had no interest in accepting the plea
in any event, and thus it is also clear that Petitioner would not be able to show prejudice even if
counsel had been deficient as he cannot show that he would have accepted the offered plea deal.
See Lafler, 132 S. Ct. at 1385.
16

determinations following a hearing in this matter, Petitioner has failed to make a substantial
showing that he was denied a constitutional right, and jurists of reason could not disagree with this
Court's denial of his motion to vacate his sentence. As such, Petitioner's claim does not deserve
encouragement to proceed further, and a certificate of appealability shall therefore be denied.

IV. CONCLUSION

For the reasons stated above, Petitioner's sole remaining § 2255 claim is DENIED and
Petitioner is DENIED a certificate of appealability. An appropriate order follows.

on: Jose L. Linares,
Jlhited States District Judge

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