Lustyik v. USA
Filing
34
ORDER AND MEMORANDUM DECISION that issuance of a Certificate of Appealability is Denied. Signed by Judge Tena Campbell on 11/25/19 (alt)
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION
ROBERT G. LUSTYIK, JR.,
Plaintiff,
ORDER AND
MEMORANDUM DECISION
vs.
Case No. 2:18-cv-00077-TC
UNITED STATES OF AMERICA,
Defendant.
On November 21, 2019, the court denied Robert G. Lustyik, Jr.’s Motion to Vacate, Set
Aside, or Correct Sentence under 28 U.S.C. § 2255. (See § 2255 Order, ECF No. 32.) Under
Rule 11(a) of the Rules Governing Section 2255 Proceedings for the United States District
Courts, “The district court must issue or deny a certificate of appealability [“COA”] when it
enters a final order adverse to the applicant.” For the reasons stated below, the court denies the
COA.
LEGAL STANDARD
When a court denies a § 2255 petition, the petitioner does not have an automatic right to
appeal that decision. Instead, the petitioner must obtain a COA from either the district court or
the court of appeals. 28 U.S.C. § 2253(c)(1)(B).
To obtain a COA, the petitioner must make a “substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2). The court should issue a COA only if “jurists of
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reason could disagree with the district court’s resolution” of the claims raised in the § 2255
petition or “could conclude the issues presented are adequate to deserve encouragement to
proceed further.” United States v. Springer, 875 F.3d 968, 972 (10th Cir. 2017) (internal
quotations omitted). If “reasonable jurists would not find the district court’s decision on these
issues debatable or wrong,” the court should deny the COA. Jones v. Warrior, 805 F.3d 1213,
1222 (10th Cir. 2015).
ANALYSIS
Mr. Lustyik’s § 2255 motion asserted that his attorneys provided ineffective assistance of
counsel during his underlying criminal prosecution. To prevail on the motion, Mr. Lustyik was
required to satisfy the two-part test set forth in Strickland v. Washington, 466 U.S. 668 (1984).
Under the first prong, the petitioner must show that his attorney’s representation fell below an
objective standard of reasonableness. Id. at 688. Second, the petitioner must establish that he
was prejudiced by the allegedly deficient representation. Id. at 687, 693.
Where, as here, the petitioner entered a guilty plea, “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.” Hill v. Lockhart, 474 U.S. 52, 58 (1985). The Supreme
Court has emphasized that this is a high burden: “A defendant without any viable defense will be
highly likely to lose at trial. And a defendant facing such long odds will rarely be able to show
prejudice from accepting a guilty plea that offers him a better resolution than would be likely
after trial.” Lee v. United States, 137 S. Ct. 1958, 1966 (2017).
As discussed in more detail in its order, Mr. Lustyik gained a two-point downward
variance in the sentencing guidelines by pleading guilty. (§ 2255 Order at 14.) It is highly
unlikely that he would have obtained a better outcome by proceeding to trial. His only plausible
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defense required that certain classified information be disclosed to the jury. But after reviewing
the classified evidence, the court concluded the documents did not actually support Mr. Lustyik’s
proposed defense. The efforts of Mr. Lustyik’s attorney “to obtain permission to disclose such
information failed because the court, having reviewed the documents, disagreed with his
argument, not because he was ineffective in making that argument.” (Id. at 15.)
Although Mr. Lustyik advanced numerous different arguments in his motion to vacate,
this lack of any viable defense was the central reason that Mr. Lustyik’s request was denied.
Because Mr. Lustyik would not have prevailed at trial, he cannot show that he was prejudiced by
anything his attorney did or did not do before Mr. Lustyik’s decision to plead guilty. He cannot
show that pleading guilty was itself a prejudicial decision. And no evidence supports his claims
that he was prejudiced by his attorneys’ conduct after he pled guilty. In the court’s view,
“‘jurists of reason could [not] disagree with the district court’s resolution’” of Mr. Lustyik’s
claims and “‘could [not] conclude the issues presented are adequate to deserve encouragement to
proceed further.’” Springer, 875 F.3d at 972. Accordingly, no COA will be issued.
ORDER
The court orders that no certificate of appealability be issued for the court’s November
21, 2019 order denying Mr. Lustyik’s motion to vacate.
DATED this 25th day of November, 2019.
BY THE COURT:
TENA CAMPBELL
U.S. District Court Judge
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