COVINGTON v. UNITED STATES OF AMERICA

Filing 13

OPINION. Signed by Judge Jose L. Linares on 2/22/2017. (ld, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
KELLAR COVINGTON, JR.,

Civil Action No. 15-8655 (JLL)

Petitioner,
v.

OPINION

UNITED STATES OF AMERICA,
Respondents.

LINARES, District Judge:
Presently before the Court is the amended motion of Kellar Covington, Jr., (“Petitioner”)
to vacate, set aside, or correct his sentence brought pursuant to 28 U.S.C.

§

2255. (ECF No 9).

following an extension, the Government filed a response to the amended motion (ECF No. 12).
Petitioner did not file a reply. for the following reasons, this Court will deny Petitioner’s amended
motion and deny him a certificate of appealability.

I. BACKGROUND

On february 25, 2014, Petitioner, Kellar Covington, Jr., pled guilty via a plea agreement
to a one count information charging him with aiding and abetting the filing of false tax returns in
violation of 26 U.S.C.

§ 7206(2). (Docket No.

14-85 at ECF No. 10-13). Pursuant to his plea

agreement, Petitioner pled guilty in exchange for an agreement from the Government not to seek
further charges in relation to Petitioner’s filing of false tax returns on behalf of his clients for the
2006, 2008, and 2009 tax years. (Docket No. 14-85 at ECF No. 12). Petitioner’s plea agreement
directly informed Petitioner that, in pleading guilty, he would be subject to a three year statutory
maximum sentence accompanied by appropriate fees and a period of supervised release, and that
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his sentence would be subject to the discretion of the trial court judge after consultation with the
advisory sentencing guidelines. (Id. at 2-3). Petitioner’s plea agreement contained stipulations as
to the loss amount involved in this case, and that, should the Court accept that stipulation,
Petitioner could not raise an appeal or collateral attack challenging that acceptance. (Id. at 7).
Petitioner’s plea agreement, however, did not contain any terms preventing Petitioner from arguing
for a below guidelines sentence. (Id. at 1-7).
On February 25, 2014, Petitioner appeared before Magistrate Judge Clark, to whom Judge
Hochberg referred Petitioner’s plea hearing, to plead guilty. (Document 7 attached to ECF No. 12
at 1). After ensuring that Petitioner understood the rights he was waiving by pleading guilty to the
information, the magistrate again explained to Petitioner his maximum sentencing exposure, the
discretion of the district court at sentencing, and the role of the sentencing guidelines at sentencing.
(Id. at 18-29). Petitioner then provided the factual basis for his plea. (Id. at 28). In that factual

basis, Petitioner admitted that he had met with his clients after being hired to prepare their tax
returns, that he had then falsely and fraudulently prepared those returns to ensure a greater refund
by overstating “losses,

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.

.

gifts to charity, job expenses[,] and real estate losses.” (Id. at 29-3 0).

Petitioner admitted to overstating these amounts in at least four different 2007 tax returns. (Id. at
30). Petitioner then explained that he overstated thousands of dollars in charity donations and
expenses for several clients, that he knew the information he placed in those returns was false
when he produced the returns, and that he received a fee in return for falsely filing these returns.
(Id. at 31-32). Petitioner thus admitted his guilt to the charged offense, resulting in a tax loss to

the Government of over one hundred and forty thousand dollars.

(Id.at 32-33).

Based on

Petitioner’s factual recitation and knowing waivers of his rights, Magistrate Judge Clark
recommended that the Court accept Petitioner’s guilty plea. (Id. at 33-35). Judge Hochberg

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adopted the Magistrate Judge’s report and recommendation and thus accepted Petitioner’s guilty
plea by way of an order issued on March 12, 2014. (Docket No. 14-85 at ECF No. 15-16).
Judge Hochberg held a sentencing hearing for Petitioner on July 8, 2014. (Document 8
attached to ECF No. 12). At sentencing, both the Government and Petitioner’s counsel agreed to
the P SR’s recommended offense level of 15, criminal history category of one, and resulting
guidelines range of 18 to 24 months. (Id. at 4). The parties also agreed that the statute required at
least a one year period of supervised release and appropriate fines. (Id. at 4-5). following these
agreements, Judge Hochberg asked whether either side had any arguments for variance or
downward departures. (Id. at 5). Neither side presented any application for a variance. (Id.).
Petitioner’s counsel then presented his sentencing argument. (Id.). Initially, in response
to a question from the Court, Petitioner’s counsel admitted that there were several self-policing
tax credits which had been the source of many of the tax fraud cases which were occurring at the
time of Petitioner’s offense. (Id. at 6). Afier answering that question, counsel presented several
arguments suggesting that, under the sentencing factors, Petitioner should receive a sentence on
the lower end of the guideline range. (Id. at 7-8). In so doing, counsel informed the Court that
Petitioner had no prior record, had overcome a limited educational background following the death
of his father, and had raised his children despite the personal problems of his wife. (Id. at 8).
Counsel also argued that Petitioner’s positive effects on his community and support therefrom, as
evinced by the various letters submitted on his behalf by friends and family, in combination with
Petitioner’s history and regret for his actions suggested that Petitioner should receive a lenient
sentence. (Id. at 8-10). In making that argument, and apparently in response to the Court’s
questions regarding how common tax fraud cases had become, counsel recognized that Petitioner’s
receipt of some level of custodial sentence “will be a general deterrent to others in the community

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[and] will be a specific deterrent to” Petitioner. (Id. at 9). Finally, as part of his argument, counsel
suggested that he could “not ask for a sentence lower than

.

.

.

the guidelines” range, as he was

apparently under the mistaken belief that he was foreclosed from so arguing by the plea agreement.
(Id. at 10).

In its response to these arguments, the Government informed the Court that Petitioner was
not foreclosed from making arguments for a below guidelines range, and, although the
Government believed a custodial sentence should be imposed and did not agree that a departure
was warranted, “if the Court wants to consider a sentence below the guideline range based on
[defense counsel’s arguments],

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.

.

[the] pela agreement [does not] prohibit{] that.” (Id.at 14-16).

Based on these presentations, Petitioner’s background, and the need for deterrence of Petitioner
and the general public, the Court thereafter sentenced Petitioner to eighteen months imprisonment,
the bottom of the guidelines range, and one year of supervised release. (Id. at 17-18). Once
sentencing had concluded and all issues had been dealt with by the Court, defense counsel
introduced his law clerk to Judge Hochberg. (Id. at 23-24). Following this introduction, Judge
Hochberg specifically informed Petitioner that his counsel had done “a wonderful job” arguing in
his favor, and that many others facing similar charged had received harsher sentences absent such
representation. (Id.).
After the conclusion of sentencing, however, defense counsel realized his mistake as to his
ability to argue for a downward departure, and thus filed a motion with the court to correct
Petitioner’s sentence. (Docket No. 14-85 at ECF No. 21). In his certification in support of that
motion, counsel explained that, during his representation of Petitioner, there had been two plea
agreements offered, one of which did not permit a downward variance argument. (Docket No. 14$5 at Document 3 attached to ECF No. 21). Counsel further stated that, during his sentencing

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argument, he had mistakenly thought that it was this harsher plea agreement which had applied,
rather than the agreement Petitioner had signed which permitted a downward variance argument.
(Id.). Realizing his mistake, counsel had asked, and received, the Government’s consent to his

making a motion to correct the sentence so that he could argue for a downward variance to rectify
any “ineffective counseling” resulting from counsel’s mistake as to the applicable plea agreement.
(Id.). The trial court, following briefing on the motion, ultimately granted the motion to reduce

Petitioner’s sentence, and, on September 5, 2014, entered an amended judgment ordering that
Petitioner be imprisoned for thirteen months, followed by a one year supervised release term with
five months of home confinement. (Docket No. 14-85 at ECF No. 32).
II. DISCUSSION
A. Legal Standard

A prisoner in federal custody may file a motion pursuant to 2$ 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 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 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 f.2d 1265, 1268 (3d Cir. 1979) (quotingHillv. United States, 36$ U.S. 424, 429 (1962)), cert.

5

denied 444 U.S. $65 (1979); see also Morelli v. United States, 285 F. Supp. 2d 454, 458-59 (D.N.J.
2003).
B. An evidentiary hearing is not required in this matter

2$ U.S.C.

§ 2255(b) requires an evidentiary hearing for all motions brought pursuant to the

statute “unless the motion and files and records of the case conclusively show that the prisoner is
entitled to no relief.” 28 U.S.C.

§ 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
petitioner 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 ineffective assistance claims are without merit based on the record of this
matter, and no hearing is therefore required for the resolution of Petitioner’s amended motion to
vacate sentence.
C. Petitioner’s Ineffective Assistance Claims

In his amended motion to vacate sentence, Petitioner asserts numerous claims in which he
asserts that his trial counsel was constitutionally ineffective during the various stages of his
prosecution. The legal standard which applies to ineffective assistance of counsel 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 perforniance
was deficient. This requires [the petitioner to show] that counsel
made errors so serious that counsel was not functioning as the
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‘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
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.
United States v. Cross, 308 F.3d 308, 315 (3d Cir. 2002).
.

.

.

.

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Jitdge, 119 F. Supp. 3d at 280-81. In his motion and amended motion, Petitioner presents twelve
claims of ineffective assistance which can be grouped into three major assertions: that counsel was
ineffective in investigating Petitioner’s case prior to his plea deal in that counsel “failed” to
respond to the prosecution’s requests for more information and failed to investigate Petitioner’s
clients as potential defense witnesses (Petitioner’s claims one and two); that counsel was
ineffective in failing to secure a more favorable bail arrangement for Petitioner (Petitioner’s claims
three through five); and that counsel was constitutionally ineffective at sentencing insomuch as
counsel failed to ask for a below guidelines sentence even afier being prompted to do so by the
comments of the Court and prosecution, stated that a custodial sentence was appropriate for
deterrence, and was “more interested in introducing his new law clerk to the judge” than in
representing Petitioner. (Petitioner’s claims six through eight and ten through thirteen).’
1. Petitioner’s pre-trial investigation claims

In his first two claims, Petitioner asserts that his trial counsel proved constitutionally
ineffective in failing to investigate Petitioner’s case both by failing to investigate what information
Petitioner possessed and could provide to the Government regarding other criminal activities, and
in failing to investigate Petitioner’s clients as potential witnesses at trial. As one court in this
district has explained,
[i]n Strickland, the Supreme Court held that trial counsel “has a duty
to make reasonable investigations or to make a reasonable decision
that makes particular investigations unnecessary. In any
ineffectiveness case, a particular decision not to investigate must be
directly assessed for reasonableness in all the circumstances,
applying a heavy measure of deference to counsel’s judgments.”
466 U.S. at 691. “The failure to investigate a critical source of
potentially exculpatory evidence may present a case of
constitutionally defective representation,” and “the failure to
‘Petitioner also originally had an additional claim, Petitioner’s claim nine, in which he attempted to assert that counsel
failed to challenge the loss amount. (ECF No. 1 at 11). Petitioner, however, formally withdrew that claim in his
amended motion to vacate sentence (ECF No. 9 at 7 n. 2), and this Court therefore need not address it in this opinion.

8

conduct any pretrial investigation generally constitutes a clear
instance of ineffectiveness.” United States v. Travillion, 759 F.3d
281, 293 n. 23 (3d Cir. 2014) (internal quotations omitted); see also
United States v Gray, 87$ F.2d 702, 711 (3d Cir. 1989) (noting that
a complete absence of investigation usually amounts to ineffective
assistance because a counsel cannot be said to have made an
informed, strategic decision not to investigate); United States v.
Baynes, 622 f.2d 66, 69 (3d Cir. 1980).
Where a Petitioner can show that counsel’s failure to
investigate amounts to deficient performance, he must still show
prejudice. In order to do so,
a defendant basing an inadequate assistance claim on
his or her counsel’s failure to investigate must make
“a comprehensive showing as to what the
investigation would have produced. The focus of the
inquiry must be on what information would have
been obtained from such an investigation and
whether such information, assuming admissibility in
court, would have produced a different result.
United States v. Askew, 88 f.3d 1065, 1073 (D.C. Cir. 1996)
(quoting Sullivan v. fairman, 819 F.2d 1382, 1392 (7th Cir. 1987));
see also United States v. Lathrop, 634 F.3d 931, 939 (7th Cir. 2011)
(“[w]hen a petitioner alleges that counsel’s failure to investigate
resulted in ineffective assistance, the petitioner has the burden of
providing the court with specific information as to what the
investigation would have produced”); United States v. Green, 882
F.2d 999, 1002 (5th Cir. 1989) (“A defendant who alleges a failure
to investigate on the part of his counsel must allege with specificity
what the investigation would have revealed and how it would have
altered the outcome” of Petitioner’s case); accord Untied States v.
Garvin, 270 F. App’x 141, 144 (3d Cir. 2008).
Brown v. United States, No. 13-2552, 2016 WL 1732377, at *4..5 (D.N.J. May 2, 2016).

Although Petitioner asserts that trial counsel failed to investigate both what information
Petitioner had to provide to the Government about other criminal activities and that counsel failed
to investigate potential defense witnesses in the form of Petitioner’s former clients, Petitioner has
utterly failed to present any evidence of what such an investigation would have produced. Instead,
Petitioner provides nothing more than his own speculation, stating that he “believes” he had
9

unspecified information of value and that had this speculative information been shared, the
Government may have offered a more favorable plea agreement. (ECF No. 9 at 7). As to the
potential witnesses, Petitioner likewise expresses only that, had Petitioner’s clients been
interviewed, “the clients would have provided him a defense” because Petitioner believes these
witnesses would have said that they were “intimidated by federal agents who accused them of
filing false [tax] returns.”2 (Id. at 8). Petitioner has failed to provide any evidentiary support for
these claims.

Petitioner has certainly failed to provide a comprehensive showing of what

information counsel would have discovered had he investigated as Petitioner now contends he
should have. Brown, 2016 WL 1732377 at *45; see also Askew, $8 F.3d at 1073. As such,
Petitioner has not provided any information which would permit this Court to conclude that, had
counsel so investigated, there is a reasonable probability that the outcome of his plea or trial would
have been different, and Petitioner has thus failed to demonstrate prejudice as to his investigation
related claims. Brown, 2016 WL 1732377 at *4.5; see also Askew, 8$ F.3d at 1073. Petitioner
has therefore failed to establish ineffective assistance of counsel on that basis.
2. Petitioner’s bail related claims

In his next series of claims, Petitioner asserts that his trial counsel was constitutionally
ineffective in that he failed to rebut claims that Petitioner was likely to flee during a pre-trial
hearing, which resulted in Petitioner having to “wear an ankle bracelet” following his arraignment.
In his amended motion, however, Petitioner fails to in any way identify how his having to wear an
ankle bracelet during the pre-trial phase of his criminal proceedings in any way affected the

2

This Court also notes that the failure of Petitioner to provide sworn statements as to what testimony these alleged
witnesses would have provided renders him incapable of showing that he suffered Strickland prejudice from counsel’s
failure to interview them and ultimately call them as witnesses at trial. See Jttdge, 119 F. Supp. 3d at 285; Tolentino
v. United States, No. 13-4168, 2014 WI 3844807, at *3 (D.N.J. July31, 2014); see also Duncan v. Morton, 256 F.3d
189, 201-02 (3d Cir. 2001).

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ultimate outcome of his prosecution

—

Petitioner’s conviction and the length and severity of his

sentence. Strickland prejudice requires such a showing. 466 U.S. at 692-93. Even if the Court
were to assume, arguendo that, had counsel made the arguments regarding his flight risk Petitioner
now raises, the trial judge would have released him pending trial without an ankle bracelet, that
does not establish that the outcome of Petitioner’s prosecution would have been any different.
Simply put, the outcome of Petitioner’s arraignment had no clear effect on the outcome of his
prosecution or his sentence, and thus Petitioner cannot show that he was prejudiced sufficient to
make out a claim of ineffective assistance of counsel based on the outcome of his arraignment. Id.
Thus, Petitioner has failed to show that he suffered Strickland prejudice in any of three claims in
which he challenges counsel’s performance during arraignment regarding Petitioner’s flight risk,
and his claims of ineffective assistance of counsel on that basis must therefore be denied. Id.;
Cross, 30$ F.3d at 315.
3. Petitioner’s sentencing claims

In his final series of claims, Petitioner asserts that his trial counsel was ineffective at
sentencing insomuch as counsel failed to argue for a below guidelines range sentence because
counsel inadvertently believed that he was precluded from doing so under Petitioner’s plea
agreement.

Petitioner also argues that counsel acted against his interests in admitting that

deterrence was a legitimate sentencing interest in tax related crimes, that counsel assured him he
would receive a probationary sentence and then failed to argue for such,3 and that counsel was

Although Petitioner asserts that counsel “induced” him to plead guilty by assuring him he would receive a
probationary sentence, Petitioner does not assert that counsel was ineffective in advising him to plead guilty on the
basis of counsel’s alleged promise to deliver a probationary sentence. Had Petitioner attempted to raise such a claim,
however, it would fail as Petitioner was clearly advised via the plea agreement, Rule 11 application, and plea colloquy
as to the Court’s discretion, the advisory nature of the sentencing guidelines, and the mandatory maximum sentence
he faced. See United States v. Bid, 795 F.3d 363, 366-67 (3d Cir. 2015) (erroneous sentencing prediction will not
provide basis for ineffective assistance of counsel claim where an adequate plea hearing was conducted); United States
v. Sherdrick, 493 F.3d 292, 299 (3d Cir. 2007) (plea hearing adequate to dispel harm from erroneous sentencing
prediction where the petitioner is informed of the maximum sentencing exposure, the discretion of the trial judge, and

11

more interested in introducing his law clerk to the judge than in securing a better sentence for
Petitioner.

Turning first to Petitioner’s final argument, the sentencing transcript makes it

abundantly clear that counsel was not more concerned with introducing his law clerk than
providing an adequate defense for Petitioner. Instead, the transcript shows that counsel sought to
introduce his clerk only afier having provided sentencing arguments for Petitioner which the
sentencing judge deemed a “wonderful job.” Petitioner’s argument on that count thus finds no
support in the record, and is insufficient to show that counsel was constitutionally ineffective.
Likewise, Petitioner’s argument that counsel was acting more as a prosecuting attorney
than a defense attorney, insomuch as counsel commented on the need to deter Petitioner and those
similarly situated, lacks an appreciation for the context in which counsel made those comments.
When read in context, counsel’s comments regarding the need to deter, and his explanation of the
reason so many tax fraud cases had arisen at the time based on the self-policing nature of the tax
code, were comments made directly in response to the sentencing judge’s concern for the growing
number of tax fraud cases with which the Court had been faced at the time. It likewise appears
that counsel’s comments regarding the need to deter was a concession made to assuage sentencing
court’s concern that a deterrent was necessary to limit this growing number of tax fraud cases, and
in turn convince the court that a minimal sentence, as opposed to a sentence higher along the
guidelines range, would be adequate to deter others from breaching these self-policing tax credits.
Petitioner’s argument that counsel acted more like a prosecutor than as his counsel at sentencing
thus, at best, lacks an appreciation for the context of counsel’s comments and of the sentencing
judge’s concerns with the large number of tax prosecutions before the Court.

the nature and effects of the sentencing guidelines); United States v. Mustafa, 238 F.3d 485, 492 (3d Cir. 2001) (same).
(See also Document 6 attached to ECF No. 12 at 3-7; Document 7 attached to ECF No. 12 at 18-29; Docket No. 1485 at ECF No. 12 at 2-3).

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Even putting aside these factual holes in Petitioner’s arguments, the ultimate problem all
of Petitioner’s sentencing ineffective assistance claims face is that Petitioner cannot show that he
suffered prejudice as a result of counsel’s actions at and after sentencing. Even granting that
counsel was clearly mistaken that he could not argue for a downward departure at sentencing, that
error was addressed in this matter by counsel’s post-sentencing motion to reduce Petitioner’s
sentence. In his briefs in support of that motion, trial counsel made extensive arguments in support
of a request for a below-guidelines range sentence, which ultimately resulted in a corrected,
reduced sentence from the Court which provided for five months of house arrest and in turn five
fewer months of custodial incarceration. Thus, Petitioner has already received the benefit of the
arguments he now asserts trial counsel should have made because trial counsel did make those
arguments, albeit in a post-sentencing motion. Because counsel’s mistaken beliefs regarding the
plea agreement have already been addressed, and because counsel’s post-sentencing motion has
already provided Petitioner with a sentence below the bottom of the guidelines range, it is clear
that any prejudice Petitioner may have suffered from that mistake has been alleviated.
This is not a case in which the Court must guess at what would have occurred had counsel
argued for a downward departure, the sentencing judge already answered that question in granting
Petitioner’s motion for a reduced sentence. Any prejudice Petitioner may have suffered from
counsel’s perfonuance has thus already been addressed, and there is nothing in the record which
suggests that, had counsel made additional unspecified arguments at sentencing or in his post
sentencing motion, Petitioner would have received a sentence below that imposed upon him in the
amended judgment in this case. As such, Petitioner has failed to establish that he suffered any
prejudice from counsel’s alleged failings at sentencing which was not completely alleviated by the
amended judgment and Petitioner’s resulting below guidelines range sentence. Petitioner’s failure

13

to establish any prejudice from counsel’s representation precludes him from establishing
ineffective assistance of counsel, and Petitioner is therefore not entitled to relief, and his motion
to vacate sentence must therefore be denied. Strickland, 466 U.S. at 692-93; Cross, 30$ f.3d at
315.
III. CERTIFICATE OF APPEALABILITY

Pursuant to 2$ 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). for the reasons expressed above, Petitioner has
failed to establish that he suffered Strickland prejudice and has thus failed to show ineffective
assistance of counsel. He has therefore not made a “substantial showing” of the denial of a
constitutional right. Because jurists of reason would not disagree with this Court’s conclusion that
Petitioner has failed to establish ineffective assistance of counsel, Petitioner’s claims are
inadequate to deserve encouragement to proceed further, and Petitioner is denied a certificate of
appealability.
IV. CONCLUSION

F or the reasons set forth above, Petitioner’s amended motion to vacate his sentence (ECF
No. 9) is DENIED, and Petitioner is DENIED a certificate of appealability. An appropriate order
follows.

Ho/se L. Linares,
States District Judge

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