STRADFORD v. UNITED STATE OF AMERICA
Filing
30
OPINION filed. Signed by Judge Freda L. Wolfson on 11/7/2013. (jjc)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
TERRANCE STRADFORD,
Civil Action No. 11-4522 (FLW)
Petitioner,
v.
OPINION
UNITED STATES OF AMERICA,
Respondent.
APPEARANCES:
TERRANCE STRADFORD, #20666-058
FDC Canaan
P.O. Box 200
Waymart, PA 18472
Petitioner Pro Se
SARAH M. WOLFE, Assistant U.S. Attorney
PAUL J. FISHMAN, United States Attorney
402 E. State Street
Trenton, NJ 08608
Attorneys for United States
WOLFSON, District Judge:
Terrance Stradford , a prisoner who is detained at FDC Canaan, filed an Amended Motion,
pursuant to 28 U.S.C. § 2255, to vacate, set aside, or correct a 120-month sentence entered in this
Court on July 22, 2008, in United States v. Stradford, Crim. No. 06-0275 (FLW) judgment (D.N.J.
July 22, 2008). The United States filed an answer. Stradford filed a reply, a supplemental
petition, and two motions to clarify the status of the case. Stradford’s § 2255 motion revolves
around his claim that the Magistrate Judge lacked authority to conduct the arraignment, to enter a
continuance order, and to set his trial date. For the reasons expressed below, the Court will
construe the supplemental petition as a supplemental reply, deny relief under § 2255, decline to
issue a certificate of appealability, and deny the motions to clarify as moot.
I. BACKGROUND
On December 28, 2005, the United States filed a criminal complaint charging Terrance
Stradford with knowingly conspiring to obtain money through interstate wire transmissions by
means of fraudulent pretenses, in violation of 18 U.S.C. § 1343, and knowingly engaging,
attempting to engage, and aiding and abetting others in engaging in monetary transactions in
criminally derived property worth more than $10,000, contrary to 18 U.S.C. § 1957. The
complaint alleged that Stradford, a dentist and businessman, defrauded several banks and lending
agencies in a fraudulent scheme in which he offered real property that had already been
encumbered, as collateral for loans, and concealed the existing liens from subsequent lenders. A
warrant for Stradford’s arrest issued the same day, and the FBI arrested him on January 11, 2006.
On April 5, 2006, a grand jury returned a 23-count indictment, and on August 23, 2006, a grand
jury returned a 24-count superseding indictment. Prior to trial, Stradford filed a motion to dismiss
the superseding indictment based on the Speedy Trial Act, which this Court denied by Order filed
July 17, 2007, after conducting an evidentiary hearing. Jury selection began on September 10,
2007, and, on September 26, 2007, a jury returned a verdict finding Stradford guilty on all counts.
On July 21, 2008, this Court imposed a below-guidelines sentence of 120 months in prison and
three years of supervised release.
Stradford appealed, arguing that this Court erred in denying his motion to dismiss the
superseding indictment on speedy trial grounds. See United States v. Stradford, 394 F.App’x 923
(3d Cir. 2010). The Third Circuit found: (1) the Magistrate Judge’s February 14, 2006, Order,
2
which granted a 45-day continuance and excluded the period from February 17, 2006, through
April 3, 2006, in computing time under the Speedy Trial Act, complied with the Speedy Trial Act;
and (2) this Court’s June 5, 2006, Order, which granted a continuance and excluded the time from
June 5, 2006, through August 1, 2006, in computing the time under the Speedy Trial Act, was not
an abuse of discretion. Id. The Court of Appeals accordingly affirmed. Id. On April 4, 2011,
the United States Supreme Court denied Stradford’s petition for certiorari, see Stradford v. United
States, 131 S.Ct. 1829 (No. 10-9221) (2011), and on May 31, 2011, the Supreme Court denied
rehearing, see Stradford v. United States, 131 S.Ct. 2951 (2011).
Stradford filed the instant motion to vacate, pursuant to 28 U.S.C. § 2255, on August 5,
2011. (Motion, ECF No. 1.) On October 6, 2011, this Court notified Stradford, pursuant to
United States v. Miller, 197 F.3d 644 (3d Cir. 1999), that he could elect to have his motion ruled
upon as filed, or withdraw the motion and file an all-inclusive § 2255 motion (subject to the
one-year statute of limitations). (Order, ECF No. 3.) In response, Stradford filed an amended §
2255 motion. (Amended Motion, ECF Nos. 4, 4-1.) He sets forth the following grounds on the
face of the amended motion: (1) he was denied his right to a speedy trial; (2) the Magistrate Judge
lacked jurisdiction to preside over various pretrial proceedings; and (3) he was denied the effective
assistance of counsel.1 (Amended Motion, ECF No. 4 at pp. 4-5.)
On May 18, 2012, the government filed an answer, arguing that the motion should be
denied because Stradford’s Speedy Trial Act claims were rejected on direct appeal, counsel was
not ineffective, and his claims are procedurally defaulted and without merit. (Answer, ECF No.
1
Stradford’s amended motion raises the Speedy Trial Act in his grounds one and four.
(Amended Motion, ECF No. 4 at 4-5.) This Court will consider the speedy trial claims as Ground
One.
3
20.) Stradford filed a reply on May 31, 2012 (ECF No. 20), a letter brief on July 18, 2012 (ECF
No. 24), and a document labeled supplemental petition on May 3, 2013.2 (ECF No. 25.) He filed
motions to clarify the status of the case on May 3, 2013, and August 19, 2013. (Motions, ECF
Nos. 26, 28.)
II. DISCUSSION
Under 28 U.S.C. § 2255, a federal court may vacate, set aside or correct a sentence “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 sentence, or that the sentence was
in excess of the maximum authorized by law, or is otherwise subject to collateral attack.” 28
U.S.C. § 2255(a). An evidentiary hearing is not required under § 2255 where “the files and
records of the case conclusively show that the prisoner is entitled to no relief.” United States v.
Padilla-Castro, 426 F.App’x 60, 63 (3d Cir. 2011) (quoting 28 U.S.C. § 2255(b)); accord United
States v. Day, 969 F.2d 39, 41-42 (3d Cir. 1992).
A. Ground One: Speedy Trial
Stradford raised speedy trial claims before this Court in a motion to dismiss the indictment
and before the Third Circuit on direct appeal. Both courts squarely rejected these claims on the
merits. See Stradford, 394 F.App’x 923. The government argues, and this Court agrees, that
readjudication of Stradford’s speedy trial claims at this time is not warranted.
Although res judicata does not bar § 2255 review of constitutional issues, see Kaufman v.
United States, 394 U.S. 217, 227 n.8 (1969), “[o]nce a legal argument has been litigated and
decided adversely to a criminal defendant at his trial and on direct appeal, it is within the discretion
2
Although the reply, letter brief, and supplemental petition are confusing and repetitive, this
Court will consider all the arguments raised in these documents as Stradford’s “reply.”
4
of the district court to decline to reconsider those arguments if raised again in collateral
proceedings under 28 U.S.C. § 2255.” United States v. Orejuela, 639 F.2d 1055, 1057 (3d Cir.
1981). See also Lamar v. United States, Civ. No. 05-155 (GEB), 2007 WL 1959273, at *2
(D.N.J. Jul. 5, 2007). The reasons supporting this rule include “the strong policies favoring
finality” and “the conservation of scarce judicial resources.” Orejuela, 639 F.2d at 1057. An
exception exists when there has been an “intervening change in law” affecting the claim
previously decided adversely to the petitioner. Davis v. United States, 417 U.S. 333, 342 (1974);
accord Sonneberg v. United States, C.A. No. 01-2067, 2003 WL 1798982 (3d Cir. Apr. 4, 2003).
In this case, Stradford’s speedy trial claims were fully explored before this Court in his
motion to dismiss and by the Third Circuit on direct appeal, and Stradford has not shown an
intervening change in law. Accordingly, this Court sees no reason to disturb the prior decision of
the Third Circuit rejecting Stradford’s speedy trial issues. See United States v. DeRewal, 10 F.3d
100, 105 n.4 (3d Cir. 1993); United States v. Scherer, 673 F.2d 176, 180 (7th Cir. 1982); Orejuela,
639 F.2d at 1057; Nunez v. United States, Civ. No. 07-1193 (FLW), 2008 WL 2705016 (D.N.J.
July 8, 2008).
B. Ground Two: Jurisdiction of the Magistrate Judge
In Ground Two, Stradford challenges the jurisdiction of the Magistrate Judge to conduct
the arraignment on April 6, 2006, to enter a continuance order, and to set his trial date. The
government argues, and this Court agrees, that this ground is procedurally defaulted because
Stradford failed to raise it in his direct appeal and, to the extent the ground implicates jurisdiction
or was not procedurally defaulted, it is without merit.
5
(1) Procedural Default
“Habeas review is an extraordinary remedy and ‘will not be allowed to do service for an
appeal.’” Bousley v. United States, 523 U.S. 614, 621 (1998) (quoting Reed v. Farley, 512 U.S.
339, 354 (1994) and Sunal v. Large, 332 U.S. 174, 178 (1947)). The general rule is that, with the
exception of ineffective assistance of counsel claims, claims not raised on direct appeal may not be
raised in a § 2255 motion unless the petitioner shows cause and prejudice or actual innocence.
See Massaro v. United States, 538 U.S. 500, 504 (2003); Bousley, 523 U.S. at 622 (“Where a
defendant has procedurally defaulted a claim by failing to raise it on direct review, the claim may
be raised in habeas only if the defendant can first demonstrate either ‘cause’ and actual ‘prejudice,’
or that he is ‘actually innocent.’”) (internal citations omitted). An exception to this rule exists for
ineffective assistance of counsel claims, which “may be brought in a collateral proceeding under §
2255, whether or not the petitioner could have raised the claim on direct appeal.” Massaro, 538
U.S. at 504; see also United States v. Davies, 394 F.3d 182, 188 (3d Cir. 2005).
“The procedural-default rule is neither a statutory nor a constitutional requirement, but it is
a doctrine adhered to by the courts to conserve judicial resources and to respect the law’s important
interest in the finality of judgments.” Massaro, 538 U.S. at 504. Under the cause and prejudice
standard, “a convicted defendant must show both (1) ‘cause’ excusing his . . . procedural default,
and (2) ‘actual prejudice’ resulting from the errors of which he complains.” United States v.
Pelullo, 399 F.3d 197, 220-21 (3d Cir. 2005) (quoting United States v. Frady, 456 U.S. 152,
167-68 (1982)). To establish “cause” for procedural default, a defendant must show that “some
objective factor external to the defense impeded counsel’s efforts’ to raise the claim.” McCleskey
v. Zant, 499 U.S. 467, 493 (1991) (quoting Murray v. Carrier, 477 U.S. 478, 488 (1986)).
6
“Examples of external impediments which have been found to constitute cause in the procedural
default context include interference by officials, a showing that the factual or legal basis for a
claim was not reasonably available to counsel, and ineffective assistance of counsel.” Pelullo,
399 F. 3d at 223 (citations and internal quotation marks omitted). “[F]utility cannot constitute
cause if it means simply that a claim was unacceptable to that particular court at that particular
time.” Bousley, 523 U.S. at 623 (citation and internal quotation marks omitted). In addition, a
procedural default caused by counsel’s tactical decision, ignorance of the law or facts, or
inadvertence that is short of constitutional ineffectiveness is binding on the habeas petitioner. See
Murray, 477 U.S. at 485-87; see also Engle v. Isaac, 456 U.S. 107, 134 (1982) (“Where the basis
for a . . . claim is available, and other defense counsel have perceived and litigated that claim, the
demands of comity and finality counsel against labeling alleged unawareness of the objection as
cause for a procedural default.”).
Here, Stradford argues that he has cause for procedurally defaulting his claim involving the
Magistrate Judge because counsel was ineffective in failing to challenge the authority of the
Magistrate Judge before this Court and on direct appeal. 3 While a successful showing of
ineffective assistance of counsel may satisfy the “cause” prong of a procedural default inquiry, it
can do so only if the ineffectiveness rises to the level of a constitutional deprivation under
Strickland v. Washington, 466 U.S. 668 (1984). See Trevino v. Thaler, 133 S.Ct. 1911, 1917
(2013); Martinez v. Ryan, 132 S.Ct. 1309, 1317 (2012); Coleman v. Thompson, 501 U.S. 722, 753
(1991). However, if Stradford’s challenge to the authority of the Magistrate Judge lacks merit,
3
Stradford argued in his motion for a new trial, pursuant to Fed. R. Crim. P. 33, that counsel’s
performance was ineffective, but he did not argue that counsel was deficient in failing to challenge
the authority or jurisdiction of the Magistrate Judge. See United States v. Stradford, Crim. No.
06-0275 (FLW), 2008 WL 2275999, *10-*13 (D.N.J. May 30, 2008).
7
then he cannot successfully argue that counsel’s failure to raise the claim was constitutionally
deficient performance. See United States v. Mannino, 212 F. 3d 835, 840 (3d Cir. 2000). Thus,
this Court will review Stradford’s challenge to the authority of the Magistrate Judge to determine
whether the claim has merit.
(2) Merits of Claim
In his amended § 2255 motion and reply, Stradford argues that the Magistrate Judge lacked
the jurisdiction and authority to preside over the entry of a not guilty plea at Stradford’s
arraignment on April 6, 2006, to enter a continuance order, and to set a trial date.4 This Court
rejects these claims. For one, the Magistrate Judge did not set Stradford’s September 10, 2007,
trial date; thus, his challenge on this basis is denied.5 As for his remaining challenges, the Federal
Magistrates Act and Local Criminal Rule 5.1 authorized the Magistrate Judge to preside over
Stradford’s arraignment and to enter a continuance order.
The Federal Magistrates Act “grew out of Congress’ desire to give district judges
additional assistance in dealing with a caseload that was increasing far more rapidly than the
number of judgeships. Congress did not intend district judges to devote a substantial portion of
their available time to various procedural steps rather than to the trial itself.” Thomas v. Arn, 474
U.S. 140, 152-53 (1985) (citations, footnote, and internal quotation marks omitted). While
Article III of the Constitution “vests the judicial power of the United States in judges who have life
4
In the amended motion, Stradford argues that “the Mag. Judge was without Jurisdiction, to
preside at the felony arraignment of 4/6/06, on the charges . . ; to hear and determine the pre-trial
matter [on] Feb. 14, 2006, [and] July 31, 2006 . . .” (Amended Motion, ECF No. 4-1 at 32.) He
argues in his reply that the Magistrate Judge had no authority to set a trial date. (ECF No. 21 at
12.)
5
On January 16, 2007, the undersigned set Stradford’s trial date for September 10, 2007. See
United States v. Stradford, Crim. No. 06-0275 (FLW), Minute Entry, ECF No. 62.
8
tenure and protection from decreases in salary,” and a magistrate judge is not an Article III judge,
the Supreme Court has held that Article III is satisfied so long as “the entire process takes place
under the district court’s total control and jurisdiction,” and the district judge “exercise[s] the
ultimate authority to issue an appropriate order.” Id. at 153 (citation and internal quotation marks
omitted).
The Federal Magistrates Act, which governs the jurisdiction and powers of a magistrate
judge, provides that a district judge
may designate a magistrate judge to hear and determine any pretrial matter pending
before the court, except a motion for injunctive relief, for judgment on the
pleadings, for summary judgment, to dismiss or quash an indictment or information
made by the defendant, to suppress evidence in a criminal case, to dismiss or to
permit maintenance of a class action, to dismiss for failure to state a claim upon
which relief can be granted, and to involuntarily dismiss an action. A judge of the
court may reconsider any pretrial matter under this subparagraph (A) where it has
been shown that the magistrate judge’s order is clearly erroneous or contrary to
law.
28 U.S.C. § 636(b)(1)(A).
In accordance with § 636(b)(1)(A), Local Criminal Rule 5.1 authorizes a magistrate judge
in this district “to perform all judicial duties assigned by the Court that are consistent with the
Constitution and the laws of the United States which include . . . [c]onducting arraignments in
accordance with Fed. R. Crim. P. 10, to the extent of taking a not guilty plea or noting a
defendant’s intention to plead guilty or nolo contendere, [and h]earing and determining any
criminal pretrial motion or other criminal pretrial matter, other than those motions specified in
L.Cr.R. 5.1(o) . . .”
6
Loc. Crim. R. 5.1(g) and (n).
6
Consistent with 28 U.S.C. § 636(b)(1)(B), Local Criminal Rule 5.1(o) refers to conducting
evidentiary hearings and submitting to a district judge proposed findings of fact and
recommendations for the disposition of applications for post-trial relief, motions to dismiss or
quash an indictment, and motions to suppress. See Loc. Crim. R. 5.1(o).
9
Section 636(b)(1)(A) of the Federal Magistrates Act and Local Criminal Rule 5.1,
authorized the Magistrate Judge to preside over Stradford’s arraignment (at which a not guilty plea
was entered) and to grant a continuance. See United States v. Stephenson, 244 F.App’x 166, 167
(9th Cir. 2007) (holding that the district court properly delegated the arraignment to a magistrate
judge pursuant to 28 U.S.C. § 636(b)(1)(A)); Carter v. United States, 388 F.Supp. 1334, 1338
(W.D. Pa.) (rejecting claim in § 2255 motion that magistrate judge was not authorized to conduct
Carter’s arraignment), aff’d, 517 F.2d 1397 (3d Cir. 1975); United States v. Jensen, 690 F.Supp.2d
901, 915 (D. Ala. 2010) (“The district court has discretion to delegate an arraignment to a
magistrate judge over a defendant’s objections.”); United States v. Friel, 436 F.Supp.2d 187, 188
(D. Maine 2006) (“Since he entered a not guilty plea, there was no requirement that an Article III
judge take the plea.”); Shakespeare v. United States, Civ. No. 13-0236 (SEB), 2013 WL 2942842
*1 (S.D. Ind. June 13, 2013) (rejecting § 2255 claim that court lacked jurisdiction to enter
judgment of conviction because a magistrate judge conducted the arraignment, insofar as
“[j]urisdiction to conduct an arraignment and take a not guilty plea in a felony case is conferred
under § 636(b), not as additional duties requiring parties to give consent.”) (citation omitted); see
also 1A Andrew D. Leipold, Peter J. Henning, Federal Practice and Procedure Criminal § 161
(4th Ed. 2008) (“The arraignment may be held before a magistrate judge when so authorized by
local rule.”). Moreover, in rejecting Stradford’s speedy trial claims, the Third Circuit implicitly
approved the authority of the Magistrate Judge to enter the February 14, 2006, continuance order.
See Stradford, 395 F.App’x at 925-27.
To the extent Stradford claims that § 636(b)(1)(A) and Local Criminal Rule 5.1 violate
Article III of the Constitution, this argument fails.
10
This Court retained jurisdiction over
Stradford’s pretrial felony proceedings at all times, and this Court specifically had the authority to
reconsider any pretrial action of the Magistrate Judge “where it has been shown that the magistrate
judge’s order is clearly erroneous or contrary to law.” 28 U.S.C. § 636(b)(1)(A). Because the
challenged actions of the Magistrate Judge “t[ook] place under the district court’s total control and
jurisdiction,” United States v. Raddatz,, 447 U.S. 667, 681 (1980), there was “no danger that use of
the magistrate involve[d] a congressional attemp[t] to transfer jurisdiction [to non-Article III
tribunals] for the purpose of emasculating constitutional courts.” Peretz v. United States, 501
U.S. 923, 937 (1991) (citations and internal quotation marks omitted). Stradford’s constitutional
argument is without merit. Cf. Thomas, 474 U.S. at 153-154 (holding that the Sixth Circuit’s rule
- that a habeas petitioner’s failure to timely object to the magistrate judge’s report and
recommendation constitutes a waiver of appellate review - does not implicate Article III because a
district judge retains jurisdiction to review magistrate judge’s recommendation); Raddatz, 447
U.S. at 681-84 (holding that § 636(b)(1)(B) of the Federal Magistrates Act does not violate Article
III where the authority to make a final determination on criminal defendant’s suppression motion
in a felony case remains with the district judge).
Stradford nevertheless relies on Gomez v. United States, 490 U.S. 858 (1989), for the
general proposition that magistrate judges lack jurisdiction to conduct proceedings in felony cases.
Gomez does not govern this case because it involved § 636(b)(3), which provides that “[a]
magistrate judge may be assigned such additional duties as are not inconsistent with the
Constitution and laws of the United States.” 28 U.S.C. § 636(b)(3). In Gomez, the Supreme
Court held that those additional duties do not include jury selection in felony cases without the
defendant’s consent. Id. at 860, 876. Later, in Peretz, 501 U.S. 923, the Court held that §
11
636(b)(3) may include jury selection when the defendant has consented because, when the
defendant consents, designation of jury selection to a magistrate judge is not inconsistent with
Article III. The Court reasoned that the absence of defendant’s consent to having a magistrate
judge conduct voir dire implicated “the substantial question whether a defendant has a
constitutional right to demand that an Article III judge preside at every critical stage of a felony
trial.” Id., 501 U.S. at 929.
In addition, the Court opined that, “[b]ecause the specified duties
that Congress authorized magistrates to perform without the consent of the parties were not
comparable in importance to supervision of felony trial voir dire but were instead subsidiary
matters, we did not waver from our conclusion that a magistrate cannot conduct voir dire over the
defendant’s objection.” Id. at 932 (citation and internal quotation marks omitted). Contrary to
Stradford’s contention, Gomez does not stand for the proposition that a magistrate judge lacks
authority to conduct an arraignment and to enter a continuance order, since these are pretrial
matters included in the grant of authority under § 636(b)(1)(A), not additional duties within §
636(b)(3).
Stradford did not cite, and this Court’s independent research did not identify, any decision
by a Court of Appeals or the Supreme Court holding that a magistrate judge lacks the statutory or
constitutional authority to conduct an arraignment (where a not guilty plea is entered) or order a
continuance. As § 636(b)(1)(A) and Local Criminal Rule 5.1 authorized the Magistrate Judge in
Stradford’s case to conduct his arraignment and order a continuance, and Stradford has not shown
that this designation violates Article III, this Court finds that Stradford’s jurisdictional challenge to
then Magistrate Judge Rosen’s jurisdiction to conduct his arraignment and to enter a continuance
order is without merit.
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C. Ground Three: Ineffective Assistance of Counsel
Stradford argues in Ground Three that counsel was constitutionally deficient in failing to
successfully and properly argue the speedy trial claim, failing to challenge the jurisdiction of the
Magistrate Judge, failing to challenge this Court’s signature on the June 5, 2006, continuance
order, failing to argue that the continuance order referring to plea negotiations constituted a fraud
on the court, and failing to move for a downward departure based on the destruction of his
livelihood, the need to avoid sentencing disparity, and Stradford’s excessive pretrial incarceration.
To establish a Sixth Amendment ineffective assistance claim, the defendant must show that
“counsel’s representation fell below an objective standard of reasonableness” and “there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Lafler v. Cooper, 132 S.Ct. 1376, 1384 (2012) (quoting Strickland v.
Washington, 466 U.S. 668, 688, 694 (1984)); see also Grant v. Lockett, 709 F.3d 224, 234-35 (3d
Cir. 2013). However, “counsel cannot be deemed ineffective for failing to raise a meritless
claim.” Ross v. District Attorney of the County of Allegheny, 672 F.3d 198, 211 n.9 (3d Cir. 2012)
(quoting Werts v. Vaughn, 228 F.3d 178, 202 (3d Cir. 2000)); see also Mannino, 212 F. 3d at 840.
Because Stradford has not shown that any of his rights were violated by counsel’s alleged failure to
prevail on the speedy trial claim, failure to challenge the jurisdiction of the Magistrate Judge,
failure to challenge this Court’s signature on the June 5, 2006, continuance Order, 7 or failure to
argue that the continuance order referring to plea negotiations constituted a fraud on the court,8
7
The continuance Orders filed on June 5, 2006, and July 31, 2006, were properly authorized and
entered by this Court. See Stradford, Crim. No. 06-0275 (FLW), at ECF Nos. 28, 35.
8
Stradford contends that the continuance order constituted a fraud on the Court because it
referenced plea negotiations as a basis for the continuance, but plea negotiations were not being
conducted. The Third Circuit considered the fact that plea negotiations were not being pursued,
and determined that “the factual errors contained in the order did not undermine its validity.”
13
trial counsel could not have been constitutionally deficient for failing to properly pursue these
issues. Moreover, Stradford contends that counsel was constitutionally deficient in failing to seek
a downward departure, but counsel asked for a downward departure based on the conditions of
Stradford’s pretrial incarceration and successfully argued for a below-guidelines sentence. 9
Because Stradford has not shown constitutionally deficient performance, he has not established an
ineffective assistance of counsel claim. Because none of Stradford’s grounds have merit, this
Court will dismiss his amended § 2255 motion.10
D. Certificate of Appealability
Stradford has not made a substantial showing of the denial of a constitutional right.
Therefore, no certificate of appealability will issue pursuant to 28 U.S.C. § 2253(c)(1)(B). See
Fed. R. App. P. 22(b)(1); 3d Cir. L.A.R. 22.2.
Stradford, 394 F.App’x at 926.
9
Before the Supreme Court’s decision in United States v. Booker, 543 U.S. 220, 234 (2005), the
federal Sentencing Guidelines had “the force and effect of laws.” Booker “held unconstitutional
that portion of the Guidelines that made them mandatory,” Rita v. United States, 551 U.S. 338, 354
(2007), “and replaced the mandatory regime with one in which the Guidelines are ‘effectively
advisory.’” United States v. Merced, 603 F.3d 203, 213 (3d Cir. 2010) (quoting Booker, 543 U.S.
at 245). For a sentence entered after Booker, a sentencing court must “‘consider the Guidelines
range,’ pursuant to § 3553(a)(4), but also ‘tailor the sentence in light of other statutory concerns’
reflected in the sentencing factors of § 3553(a).” Merced, 603 F.3d at 213 (quoting Booker, 543
U.S. at 245). In the instant case, the sentence this Court imposed - 120 months in prison - was 15
months below the guidelines range of 135 to 168 months. (Transcript of Sentencing, July 21,
2008, ECF No. 20-2 at 73-74.) Since the Guidelines are advisory, the Guidelines are only one
factor to be considered under § 3553(a), and this Court imposed a below-guidelines sentence based
on all the factors set forth in § 3553(a); there was no prejudice for counsel’s alleged failure to seek
a downward departure on the additional factors described by Stradford in his § 2255 motion.
10
This Court will deny Stradford’s motions to clarify the status of the case as moot.
14
III. CONCLUSION
This Court dismisses the amended § 2255 motion, denies a certificate of appealability, and
denies the motions to clarify the status of the case.
s/Freda L. Wolfson
FREDA L. WOLFSON, U.S.D.J.
DATED:
November 7, 2013
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