Townsend v. USA

Filing 6

ORDER - Petitioners request for a certificate of appealability therefore is DENIED. Signed by Judge James L Graham on 11/5/12. (ds)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
ALAN A. TOWNSEND,
CASE NO. 2:11-CV-113
CRIM. NO. 2:08-CR-168(2)
JUDGE GRAHAM
MAGISTRATE JUDGE ABEL

Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.

OPINION AND ORDER
On July 13, 2012, final judgment was entered dismissing the instant motion to vacate, set
aside, or correct sentence pursuant to 28 U.S.C. § 2255. This matter is before the Court on
Petitioner’s August 24, 2012, Notice of Appeal (Doc. 140), which the Court construes as a request
for a certificate of appealability. For the reasons that follow, Petitioner’s request for a certificate
of appealability (Doc. 140), is DENIED.
In this federal habeas corpus petition, Petitioner asserts that his guilty plea was not knowing,
intelligent or voluntary, based on a breach of his guilty plea agreement; he also claims he was denied
effective assistance of counsel because his attorney failed to object to or raise this same issue on
appeal. Specifically, Petitioner argues that the terms of his plea agreement were violated because
the District Court imposed a five-year term of supervised release when the plea agreement indicated
he faced a maximum term of only three years supervised release. Petitioner asserts he was denied
effective assistance of counsel because his attorney failed to object to a three-point enhancement of
his sentence based on his 1996 conviction for attempted robbery and failed to advise him that he
would be required to register as a sex offender under the terms of supervised release.

On July 13, 2012, the District Court dismissed Petitioner’s claim regarding the alleged breach of his
guilty plea agreement as waived due to his failure to establish cause and prejudice for failing to raise
the claim on direct appeal, and his claim of ineffective assistance of counsel as lacking in merit.
When a claim has been denied on the merits, a certificate of appealability may issue only if
the petitioner “has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. §
2253(c)(2). This standard is a codification of Barefoot v. Estelle, 463 U.S. 880 (1983). See Slack
v. McDaniel, 529 U.S. 473, 484 (2000)(recognizing codification of Barefoot in 28 U.S.C. §
2253(c)(2)). To make a substantial showing of the denial of a constitutional right, a petitioner must
show “that reasonable jurists could debate whether (or, for that matter, agree that) the petition should
have been resolved in a different manner or that the issues presented were ‘adequate to deserve
encouragement to proceed further.’” Slack, 529 U.S. at 484 (quoting Barefoot, 463 U.S. at 893 &
n.4).
Where the Court dismissed a claim on procedural grounds, a certificate of appealability
“should issue when the prisoner shows, at least, that jurists of reason would find it debatable whether
the petition states a valid claim of the denial of a constitutional right and that jurists of reason would
find it debatable whether the district court was correct in its procedural ruling.” Id. Thus, there are
two components to determining whether a certificate of appealability should issue when a claim is
dismissed on procedural grounds: “one directed at the underlying constitutional claims and one
directed at the district court’s procedural holding.” Id. at 85. The court may first “resolve the issue
whose answer is more apparent from the record and arguments.” Id.
Petitioner has failed to establish either that reasonable jurists would debate whether his
claims should have been resolved differently, or whether the Court correctly dismissed his claim as

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waived.
Petitioner’s request for a certificate of appealability therefore is DENIED.
IT IS SO ORDERED.
Date: November 5, 2012

s/James L. Graham
James L. Graham
United States District Judge

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