Podwys v. USA

Filing 17

MEMORANDUM DECISION & ORDER: For the reasons stated in the Court's prior Memorandum Decision and Order, Mr. Podwys fails to satisfy his burden for a COA to issue and the Court denies Mr. Podwys a COA as to its ruling on his Section 2255 motion. See order for details. Signed by Judge David Sam on 08/02/2018. (kpf)

THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
DIVISION
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)
DARRELL PODWYS,
) Case No. 2:18-cv-00117-DS
Petitioner,

)

vs.

)

UNITED STATES OF AMERICA,

)

Respondent.

MEMORANDUM DECISION
AND ORDER

)

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I. INTRODUCTION
Petitioner Darrell Podwys seeks to appeal this Court’s denial of his Motion to
Vacate, Set Aside or Correct his Sentence under 28 U.S.C. § 2255. In order to proceed
with his appeal, Mr. Podwys must first obtain a certificate of appealability (COA).1 See
28 U.S.C. § 2253(c)(1). A COA may issue “only if the applicant has made a substantial
showing of the denial of a constitutional right.” Id. at §2253(c)(2). See Slack v.
McDaniel, 529 U.S. 473, 484 (2000) (“Where a district court has rejected the
constitutional claims on the merits, the showing required to satisfy § 2253(c) is
straightforward: The petitioner must demonstrate that reasonable jurists would find the
district court’s assessment of the constitutional claims debatable or wrong.”).
In support of his section 2255 motion, Petitioner urged that he received
ineffective assistance of counsel because his attorney failed to argue that 18 U.S.C. §

1

The Court previously did not address the issue of whether a COA should issue
and Mr. Podwys did not request a COA from the Court. Therefore, the matter was
partially remanded for the limited purpose of deciding whether to grant a COA.

3583(k) was unconstitutional as set forth in United States v. Haymond, 869 F.3d 1153
(10th Cir. 2017), petition for cert. filed (No. 17-1672), (June 15, 2018).
Haymond was decided seven months after this Court imposed sentence.
Ordinarily, courts refuse to deem counsel ineffective for failing to predict the
development of the law. See, e.g., Green v. Johnson, 116 F.3d 1115, 1125 (5th Cir.
1997). And under Teague v. Lane, 489 U.S. 288 (1989), “a new rule of constitutional
law, announced after a defendant’s conviction became final, is generally not applicable
on collateral review of that conviction. See United States v. Mora, 293 F.3d 1213,
1218 (10th Cir. 2002).” ECF No. 8 at p. 7; see also See Bey v. United States, 399 F.3d
1266, 1268 (10th Cir. 2005) (emphasis in original) (citing Tyler v. Cain, 533 U.S. 656,
663 (2001) (“a new rule is made retroactive to cases on collateral review only when the
Supreme Court explicitly holds that the rule it announced applies retroactively to such
cases.”). “Haymond has not been ‘made retroactive to cases on collateral review by the
Supreme Court.’ 28 U.S.C. § 2255(h)(2).” ECF No. 8 at p.7. Moreover, It was
uncontroverted by Mr. Podwys that “[a]t the time of petitioner’s sentence the law in
every circuit pursuant to 18 U.S.C. § 3583(k) required the imposition of a mandatory
minimum term of 60-months imprisonment for a violation of possessing child
pornography.” ECF No. 8 at p.4. The Court, therefore, concludes that Petitioner
cannot establish that his attorney committed “serious errors” in light of “prevailing
professional norms” such that “representation fell below an objective standard of
reasonableness.” Strickland, 466 U.S. at 687-688.
For the reasons stated above as well as in the Court’s prior Memorandum
Decision and Order, Mr. Podwys fails to satisfy his burden for a COA to issue and the

Court denies Mr. Podwys a COA as to its ruling on his Section 2255 motion.
IT IS SO ORDERED.
Dated this 2nd day of August, 2018.
BY THE COURT:

DAVID SAM
SENIOR JUDGE
UNITED STATES DISTRICT COURT