Martin v. USA

Filing 55

MEMORANDUM OPINION AND ORDER DENYING 2255 MOTION 1 AND DISMISSING THE CASE WITH PREJUDICE. The Court DENIES a certificate of appealability. The Court DIRECTS the Clerk to enter a separate judgment order. Signed by District Judge Irene M. Keeley on 7/6/2016. (Copy petitioner/cmrrr)(kd) (Additional attachment(s) added on 7/6/2016: # 1 Certified Mail Return Receipt) (kd).

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
GEORGE MARTIN,
Petitioner,
v.

CIVIL ACTION NO. 1:13CV149
CRIMINAL ACTION NO. 1:05CR21
(Judge Keeley)

UNITED STATES OF AMERICA,
Respondent.
MEMORANDUM OPINION AND ORDER DENYING § 2255 MOTION
AND DISMISSING THE CASE WITH PREJUDICE
Pending before the Court is the Motion to Vacate, Set Aside,
or Correct Sentence pursuant to 28 U.S.C. § 2255 filed by the
petitioner, George Martin (“Martin”) (Dkt. No. 1).1

The question

presented is whether Martin can establish, by a preponderance of
the evidence, that trial counsel was ineffective for allegedly
preventing him from testifying.

For the reasons that follow, the

Court DENIES Martin’s § 2255 motion and DISMISSES the case WITH
PREJUDICE.

1

Although Martin filed his § 2255 motion pro se, on February
9, 2016, the Court appointed Federal Public Defender Brian J.
Kornbrath to represent him (Dkt. No. 32).

MARTIN V. USA

1:13CV149

MEMORANDUM OPINION AND ORDER DENYING § 2255 MOTION
AND DISMISSING THE CASE WITH PREJUDICE
BACKGROUND2
On May 18, 2005, a grand jury in the Northern District of West
Virginia returned a superseding indictment charging Martin with the
following five felony counts (Dkt. No. 22 at 1-5):
C

Count One:

Conspiracy

to

Possess

with

Intent to

Distribute and to Distribute in Excess of 50
Grams of Crack Cocaine, in violation of 21
U.S.C. §§ 846 and 841(b)(1)(A)(iii);
C

Count Two:

Aiding and Abetting the Distribution of Crack
Cocaine,

in

violation

of

21

U.S.C.

§§

841(a)(1) and (b)(1)(C), and 18 U.S.C. § 2;
C

Count Three:

Distribution of Crack Cocaine, in violation of
21 U.S.C. §§ 841(a)(1) and (b)(1)(C);

C

Count Four:

Distribution of Crack Cocaine, in violation of
21 U.S.C. §§ 841(a)(1) and (b)(1)(C); and,

C

Count Five:

Using a Firearm During and in Relation To a
Drug Trafficking Crime, in violation of 18
U.S.C. § 924(c)(1)(A)(I).

2

Unless otherwise noted, the citations in this section refer
to Martin’s criminal case, Case No. 1:05CR21. The citations in the
remainder of this Memorandum Opinion and Order refer to the instant
civil action, Case No. 1:13CV149.
2

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MEMORANDUM OPINION AND ORDER DENYING § 2255 MOTION
AND DISMISSING THE CASE WITH PREJUDICE
On January 27, 2006, a jury convicted Martin of Counts One,
Two, Four, and Five, and acquitted him of Count Three (Dkt. No.
100).

On May 12, 2006, Martin received a sentence of 210 months of

incarceration as to Counts One, Two, and Four, to be served
concurrently, and 60 months of incarceration as to Count Five, to
run consecutively (Dkt. No. 111).
Martin appealed his sentence to the United States Court of
Appeals for the Fourth Circuit, arguing that (1) he had not
violated 18 U.S.C. § 924(c)(1)(A)(I) by trading a quantity of
cocaine base for a firearm; (2) the Court erred when it failed to
instruct the jury on weaker and less satisfactory evidence; and,
(3) the Court erred by allowing the government to “improperly
bolster” its case by admitting the testimony of a drug task force
officer and a videotape.

The government cross-appealed Martin’s

sentence, arguing that the Court’s determination that it was unable
to make additional factual findings not determined by the jury was
erroneous.

The Fourth Circuit vacated Martin’s conviction on the

firearm charge in Count Five, affirmed his convictions on Counts
One, Two, and Four, and remanded the case to this Court with
instructions to resentence Martin. United States v. Martin, 278 F.
App’x 248, 253 (4th Cir. 2008) (per curiam) [Martin I].

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MEMORANDUM OPINION AND ORDER DENYING § 2255 MOTION
AND DISMISSING THE CASE WITH PREJUDICE
When resentenced on January 11, 2011, Martin received a
sentence of 270 months of incarceration as to Count One, and 240
months as to Counts Two and Four, to be served concurrently
No. 187).

(Dkt.

Martin appealed, arguing that the Court had erroneously

based his sentence on a drug amount greater than that found by the
jury, and had erred when it applied a three-level role enhancement
under the guidelines.
The Fourth Circuit affirmed Martin's sentence, see United
States v. Martin, 456 F. App’x 240, 242 (4th Cir. 2011) (per
curiam) [Martin II], and the Supreme Court of the United States
later denied his petition for writ of certiorari. Martin v. United
States, 133 S.Ct. 285 (Mem) (2012).
After exhausting his appellate remedies, Martin timely filed
this motion to vacate pursuant to 28 U.S.C. § 2255, raising the
following eleven claims:
1.

Trial counsel failed to file a motion to dismiss or sever
Count Five of the superseding indictment;

2.

Trial counsel interfered with plea negotiations;

3.

Trial counsel refused to let him testify on his own behalf;

4.

Trial counsel failed to request appropriate sanctions for the
government’s discovery violations;

5.

Trial counsel failed to request an informant jury instruction;
4

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MEMORANDUM OPINION AND ORDER DENYING § 2255 MOTION
AND DISMISSING THE CASE WITH PREJUDICE
6.

Appellate counsel failed to consult with him during the
appeals process;

7.

Appellate counsel failed to argue that trial counsel was
ineffective for failing to file a motion to dismiss or sever
Count Five;

8.

Appellate counsel failed to argue that trial counsel was
ineffective for failing to request an informant instruction;

9.

Appellate counsel failed to argue that the expert testimony of
the drug task force officer fell below the Daubert standard;

10.

Appellate counsel failed to argue that the drug task force
officer’s

testimony

regarding

prior

contact

with

Martin

violated the Federal Rules of Evidence; and,
11.

Appellate counsel failed to argue that the probation officer’s
confidential sentencing recommendation violated Martin’s due
process rights (Dkt. No. 209-1 at 4-25).
On July 16, 2014, Magistrate Judge Kaull issued an R&R, which

recommended that the Court deny and dismiss all of Martin’s claims,
except for Claim Three (Dkt. No. 228).

As to that claim, he

recommended that the Court hold an evidentiary hearing to determine
whether trial counsel, in contravention of Martin's demand, had
refused to allow him to testify on his own behalf.

5

Id. at 16-17.

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MEMORANDUM OPINION AND ORDER DENYING § 2255 MOTION
AND DISMISSING THE CASE WITH PREJUDICE
Martin objected to the R&R's recommendations that the Court
dismiss Claim Nine and hold an evidentiary hearing on Claim Three
(Dkt. No. 235).

He argued that

a hearing was unnecessary because

the government had not disputed the facts alleged in Claim Three.
Id. at 2-13.

Subsequently, he moved to expand the record and for

discovery of his file (Dkt. No. 241).
The Court adopted the R&R, overruled Martin’s objections, and
dismissed all of the claims in his § 2255 motion except for Claim
Three (Dkt. No. 29).

Thereafter, on April 29, 2016, it held an

evidentiary hearing, following which the parties filed simultaneous
post-hearing briefs (Dkt. Nos. 53, 54).

The matter is now fully

briefed and ripe for disposition.
§ 2255 STANDARD
Title 28 U.S.C. § 2255(a) permits federal prisoners in custody
to assert the right to be released if “the sentence was imposed in
violation of the Constitution or laws of the United States,” if
“the court was without jurisdiction to impose such sentence,” or if
“the sentence was in excess of the maximum authorized by law, or is
otherwise subject to collateral attack.”

A petitioner bears the

burden of proving any of these grounds by a preponderance of the

6

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MEMORANDUM OPINION AND ORDER DENYING § 2255 MOTION
AND DISMISSING THE CASE WITH PREJUDICE
evidence. See Miller v. United States, 261 F.2d 546, 547 (4th Cir.
1958).

APPLICABLE LAW
In order to succeed on a claim of ineffective assistance of
counsel,

a

petitioner

must

establish

both

that

counsel's

performance was objectively unreasonable (“the performance prong”),
and also that such unreasonable performance prejudiced the defense
(“the prejudice prong”).
687 (1984).

Strickland v. Washington 466 U.S. 668,

To satisfy this test, "the defendant must show there

is a reasonable certainty that, but for counsel's professional
errors, the result of the proceeding would have been different."
Id. at 694.

When examining counsel's behavior, there is a "strong

presumption" that an attorney's behavior is within "the wide range
of reasonable professional assistance," id. at 689, a highly
deferential standard of reasonableness. Kimmelman v. Morrison, 477
U.S. 365, 381 (1986).
an easy task.”

Overcoming Strickland’s “high bar is never

Padilla v. Ky., 559 U.S. 356, 371 (2010).

The Fourth Circuit distinguishes two categories of decisions
made by trial counsel.

Personal decisions requiring consent from

the defendant include whether to enter a guilty plea, waive a trial

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MEMORANDUM OPINION AND ORDER DENYING § 2255 MOTION
AND DISMISSING THE CASE WITH PREJUDICE
by jury, appeal, and testify at trial.
F.3d 874, 885 (4th Cir. 1998).

See Sexton v. French, 163

Strategic decisions, such as what

evidence should be introduced, which objections should be raised,
and what pre-trial motions should be filed, “primarily involve
trial

strategy

and

citations omitted).

tactics.”

Id.

(internal

quotations

and

A strong presumption exists that “counsel’s

attention to certain issues to the exclusion of others reflects
trial tactics,” and not neglect.

Harrington v. Richter, 562 U.S.

86, 109 (2011) (citations and internal quotation marks omitted).
ANALYSIS
In Claim Three, Martin alleges that his trial counsel, James
Zimarowski (“Zimarowski”), refused to allow him to testify in his
own defense (Dkt. No. 1-1 at 9).

According to Martin, Zimarowski

“told [him] that he would not be allowed to testify because
Zimarowski never prepared the defense in a manner to invoke
[Martin’s] testimony,” and because “the U.S. [A]ttorney would
embarass [sic] him.”

Id.

Martin contends that, had he been able

to testify, he would have “convey[ed] his side of the story . . .,”
but he never specifies what his testimony would have been.

Id.

Based on the trial transcript, the government contends Martin and

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MEMORANDUM OPINION AND ORDER DENYING § 2255 MOTION
AND DISMISSING THE CASE WITH PREJUDICE
Zimarowski “strategically concluded” that Martin should not testify
in his defense (Dkt. No. 16 at 12).
According to Martin, he is entitled to a new trial for two
reasons.

First, the Court should have granted his § 2255 motion

without an evidentiary hearing because, until the hearing, the
government never offered any evidence rebutting his affidavit.
Second, the denial of his right to testify is a structural error,
and prejudice thus is presumed under Strickland (Dkt. No. 54). The
Court will address these arguments in turn.
I.

The Affidavit
Martin contends that the Court erred in holding an evidentiary

hearing because the government never filed anything “rebutting” his
affidavit in the two years following the filing of his § 2255
motion (Dkt. No. 54 at 1).

He contends that he is entitled to a

new trial as a matter of right because the government “provided no
reasonable explanation as to why no affidavit from trial counsel
was provided to the district court to rebut his ineffective
assistance of counsel claim.”

Id. at 2.

After its initial review of Martin’s petition, including his
affidavit, the Court concluded that Claim Three could not be
resolved solely on the basis of the record, and that an evidentiary

9

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MEMORANDUM OPINION AND ORDER DENYING § 2255 MOTION
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hearing was required.

At the evidentiary hearing, the government

explained that Zimarowski had refused to produce documents prior to
that time, citing attorney-client privilege (Dkt. No. 50 at 7–8).
Zimarowski

explained

that,

pursuant

to

a

2010

American

Bar

Association Opinion, he was precluded from offering assistance to
prosecutors in an ineffective assistance of counsel proceeding.
Id. at 11.

After the Court determined Martin had waived the

attorney-client privilege by filing his claim, Zimarowski took the
stand and testified about his communications with his client.

Id.

at 15.
Except in cases where a prisoner is clearly not entitled to
relief, “§ 2255 makes an evidentiary hearing mandatory.”

United

States v. Stokes, 112 F. App’x 905, 906 (4th Cir. 2004) (per
curiam); see also 28 U.S.C. § 2255(b).

Importantly, when the

contested issue “is one of credibility,” an evidentiary hearing in
open

court

is

required

because

“resolution

affidavits can rarely be conclusive . . . .”

on

the

basis

of

Id. (quoting Raines

v. United States, 423 F.2d 526, 530 (4th Cir. 1970)).
Here, the contested issue – whether Zimarowski refused to
allow

Martin

to

testify,

and,

if

so,

whether

such

refusal

prejudiced Martin within the meaning of Strickland – implicated the

10

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MEMORANDUM OPINION AND ORDER DENYING § 2255 MOTION
AND DISMISSING THE CASE WITH PREJUDICE
credibility of the witnesses.

Furthermore, the government has

offered a reasonable explanation for its “failure” to file an
affidavit,

namely,

that

Zimarowski

refused

to

assist

the

prosecution until after the Court found that Martin had waived his
attorney-client privilege.

The Court therefore rejects Martin’s

argument that he is entitled to a new trial because the government
failed to rebut his affidavit.3
II.

Structural Error
Martin next claims that Zimarowski’s interference with his

right to testify is a “structural error,” such that he need not
show that the outcome of his trial would have been different (Dkt.
No. 54 at 3).
that

a

In the Fourth Circuit, however, the law is clear

petitioner

must

show

both

deficient

prejudice to succeed under Strickland.

performance

and

Sexton, 163 F.3d at 882

(“Consequently, a criminal defendant’s claim that his trial counsel
was constitutionally ineffective because trial counsel failed to

3

Martin argues that, had the situation been reversed and he
not have provided an affidavit in support of his motion, the Court
would have dismissed the motion (Dkt. No. 54 at 2). He concludes
that the Court should therefore do the opposite and grant his
motion based on the government’s failure to “rebut” it. See id.
This seeming inconsistency is easily explained because it is
Martin’s burden as the movant to support his motion by a
preponderance of the evidence, not the government’s burden to rebut
the motion. See Miller, 261 F.2d at 547.
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AND DISMISSING THE CASE WITH PREJUDICE
inform him of his right to testify or because trial counsel forced
him to testify must satisfy the two-prong test established in
Strickland . . . .”).

The Court therefore rejects Martin’s

argument that it should presume prejudice and not subject his claim
to the two-prong requirement of Strickland.
III. Strickland
A.

Deficient Performance

Indisputably,

a

defendant

in

a

criminal

constitutional right to testify on his own behalf.
Ark., 483 U.S. 44, 51–53 (1987); 18 U.S.C. § 3481.

trial

has

a

See Rock v.
Although “the

defendant . . . retains the ultimate authority to decide whether or
not to testify,” United States v. McMeans, 927 F.2d 162, 163 (4th
Cir. 1991), his attorney is obliged to ensure that the defendant is
informed of his right to testify.

See Sexton, 163 F.3d at 882.

Counsel’s alleged advice to Martin not to testify is “the very type
of tactical decision that cannot be challenged as evidence of
ineffective assistance.”

Carter v. Lee, 283 F.3d 240, 253 (4th

Cir. 2002) (quoting Hutchins v. Garrison, 724 F.2d 1425, 1436 (4th
Cir. 1983) (internal quotation marks omitted)).
In his affidavit, Martin avers he told Zimarowski that he
“wanted to testify on [his] own behalf after the Government

12

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MEMORANDUM OPINION AND ORDER DENYING § 2255 MOTION
AND DISMISSING THE CASE WITH PREJUDICE
introduced

a

surprise

audio

and

video

as

evidence

testimony from an expert.” (Dkt. No. 1-2 at 2).

and

used

Allegedly,

Zimarowski told Martin “no because he never prepared the defense in
a manner to use my testimony and the Assistant U.S. Attorney would
embarass [sic] me.”

Id.

When given the opportunity to testify at

the evidentiary hearing, Martin declined to do so (Dkt. No. 50 at
35).
Zimarowski, an experienced defense attorney, denied making the
statements attributed to him by Martin.

Id. at 32–33.

Moreover,

he testified that, had Martin requested to testify at the last
minute, he would have put him on the stand.

Id. at 34.

According

to Zimarowski, he had substantive discussions with Martin about his
right to testify at trial throughout the fall of 2005 and on into
the winter of 2006.

Id. at 16.

He met with Martin in person,

spoke with him over the telephone, and sent him correspondence.
Id.

He testified that, on multiple occasions, he explained to

Martin that he was the only person who could make the ultimate
decision about whether he should testify.

Id. at 17, 25.

Although Zimarowski expressed his opinion that Martin should
not testify, he stated he made it clear to Martin that his opinion
was just that - his opinion - and that Martin would need to make
the ultimate decision.

Id. at 18.
13

Martin never expressed whether

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AND DISMISSING THE CASE WITH PREJUDICE
he wished to testify or not, but rather, “simply listened” to what
Zimarowski had to say and took the matter under consideration. Id.
Before trial, Zimarowski wrote Martin letters discussing trial
strategy and preparation, including whether he would testify.

At

the evidentiary hearing, Zimarowski produced two of those letters,
dated December 7, 2005, and January 19, 2006.

Zimarowski’s

December 7, 2005, letter states, in relevant part, as follows:
The only witness we need not disclose is you if you
choose to testify. As I indicated to you early on, it is
generally not in a defendant’s advantage to testify at
trial particularly if, like you, they have a lengthy
criminal history.
However, since the Government is
obviously trying to put you away for life, this position
becomes one that you must seriously consider whether your
case is strengthened or weakened by your testimony and
your criminal history being exposed to the jury. We will
be discussing this strategic issue in greater detail as
trial approaches (Dkt. No. 43 at 2).
Zimarowski also wrote Martin a letter dated January 19, 2006,
to follow up on whether he should testify at trial.

That letter,

in relevant part, states:
I need you also to begin thinking about whether you wish
to testify at trial.
As my previous correspondence
indicates, I have gone back and forth on this issue, but
I believe my recommendation would be that you do not
testify. If you testify, one tactic the Government will
use is to cross-examine you on all the crack heads and
crack whores that have testified against you.
Since
there are so many of them you will simply be up there
making denial after denial.
Additionally, having no
employment and over the table income in West Virginia you
are subject to cross-examination by the Government
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AND DISMISSING THE CASE WITH PREJUDICE
drawing an inference for the jury that you are simply
down here from Pennsylvania to sell drugs. Note that you
are before a jury of North Central West Virginians not
younger individuals who are into the club scene. You
need to think of how these will play to a jury.
Id. at 4.
After trial commenced, Zimarowski testified that he asked
Martin several times whether he wanted to testify, but that “[h]is
answer remained no.” (Dkt. No. 50 at 21).

Martin never advised

Zimarowski why he did not want to testify; Zimarowski assumed that
he “was listening to all of my comments regarding what would happen
in the event he chose to testify and balanced his testimony against
the benefit or the negative to the case we had presented through
cross-examination and chose not to testify.”

Id.

After the

government rested its case, Martin made the final decision not to
testify.

Id. at 22.

The trial transcripts corroborate Zimarowski’s version of
events.

Tellingly, on January 25, 2006, when asked how long

Martin’s case-in-chief would last, Zimarowski responded, “Your
honor, we still haven’t decided whether or not Mr. Martin will take
the stand.” (Dkt. No. 125-3 at 36).

Later, after two task force

agents had testified, Zimarowski advised the Court that “at this
time we do not anticipate Mr. Martin testifying . . . .” (Dkt. No.
125-5 at 25). On January 26, 2006, the government rested its case15

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AND DISMISSING THE CASE WITH PREJUDICE
in-chief, at which time Zimarowski advised that he had “been in
consultation with Mr. Martin and we do not feel the Government’s
case is sufficient and we will rest at this time . . . .” (Dkt. No.
126-2 at 21).

At no time did Martin express his desire to testify

on the record.
After careful consideration of Martin’s affidavit, the trial
transcripts,

and

Zimarowski’s

testimony,

the

Court

finds

Zimarowski’s version of events to be credible and accurate. He has
been a practicing attorney for 34 years, during which he has
represented thousands of criminal defendants (Dkt. No. 50 at
15–16).

He

routinely

has

taught

continuing

legal

education

courses, including courses delving into whether an attorney or a
client makes the decision in a particular case. Id.
was thorough, complete, and wholly credible.

His testimony

That Martin may, in

retrospect, regret having followed Zimarowski’s advice not to
testify is unavailing; that advice is “the very type of tactical
decision that cannot be challenged as evidence of ineffective
assistance.” Carter, 283 F.3d at 253 (internal citations omitted).
Furthermore, Martin’s affidavit, filed more than seven years
after the trial concluded, is the first time he has argued that
Zimarowski violated his right to testify.

He did not speak up at

trial when Zimarowski indicated his intent not to testify.
16

He

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AND DISMISSING THE CASE WITH PREJUDICE
declined to testify at the evidentiary hearing, and the account in
his affidavit differs from the other evidence in this case.

The

Court therefore FINDS that Zimarowski’s version of events is
credible, and HOLDS that Martin has failed to establish by a
preponderance

of

the

evidence

deficient

performance

under

Strickland.
B.

Prejudice

Even

if

Martin

could

succeed

in

establishing

deficient

performance, he cannot make a sufficient showing of prejudice under
Strickland. Once a defendant establishes that his attorney refused
to allow him to testify, he must then “show that ‘counsel’s errors
were so serious as to deprive the defendant of a fair trial, a
trial whose result is reliable.’” Gregory v. United States, 109 F.
Supp. 2d 441, 448 (E.D. Va. 2000) (quoting Sexton, 163 F.3d at
882).

This requires that the defendant demonstrate a reasonable

probability “sufficient to undermine confidence in the outcome”
“that, absent the error, the result of the trial would have been
different.”

Id.

Martin, whose position is that prejudice is presumed, never
elucidates how he would have testified at trial (Dkt. No. 54 at
3–5).

At the evidentiary hearing, the Court advised him that it

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AND DISMISSING THE CASE WITH PREJUDICE
disagreed

with

his

version

of

the

law,

and

offered

him

an

opportunity to put on evidence establishing how he would have
testified

(Dkt.

No.

50

at

35–36).

Martin’s

attorney,

Mr.

Kornbrath, told the Court that Martin did not wish to testify
concerning what he would have said at trial because “he thinks such
an analysis is impossible . . . .”

Id. at 38.

The Court placed

Martin under oath, who then affirmed that he does not believe he is
required to provide the Court with proffered trial testimony.

Id.

The government contends that the jury would have convicted
Martin regardless of whether he had testified at trial (Dkt. No. 53
at 9).

The government cites multiple witnesses who testified that

they purchased crack cocaine from Martin, videotape evidence, and
corroboration by different witnesses of basic details, such as the
identity of drug runners employed by Martin, locations where Martin
sold crack cocaine, and the quantity and street value of the
cocaine.

Id.

Martin’s failure to explain how his testimony would have
affected the outcome of the trial — or even to indicate what his
testimony

would

have

Strickland standard.

been

—

is

insufficient

to

satisfy

Gregory, 109 F. Supp. 2d at 448.

the

Moreover,

the trial transcripts belie any notion that the result of Martin’s
trial would have been different had he testified.
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AND DISMISSING THE CASE WITH PREJUDICE
During Martin’s three-day trial, fourteen (14) fact witnesses,
three (3) law enforcement witnesses, and two (2) chemists testified
for the government (Case No. 1:05CR21, Dkt. Nos. 124, 125, 126).
The government introduced audio and video evidence, as well as the
controlled
informants.

substances
Id.

purchased

from

Martin

by

confidential

The witnesses’ testimony was consistent as to

Martin’s modus operandi: he used others, mostly women, to serve as
“runners” in his drug operation; he drove a red car and a silver
Taurus; and, on at least two occasions, he stored the crack cocaine
intended for sale in his mouth.

Id.

Moreover, the witnesses

consistently identified Martin’s favorite haunts to sell drugs:
Curtis Ball’s house, Bulldog’s house, Northview, Monticello Avenue,
and the Vets Club.

Id.

In light of Martin’s failure to proffer what his testimony at
trial would have been, as well as the overwhelming evidence of his
drug activity presented by the government at trial, the Court
concludes he has failed to prove by a preponderance of the evidence
“that there is a reasonable certainty that, but for counsel's
professional errors, the result of the proceeding would have been
different."

Strickland, 466 U.S. at 694.

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CERTIFICATE OF APPEALABILITY
Pursuant to Rule 11(a) of the Rules Governing Section 2254 and
Section 2255 Cases, the district court “must issue or deny a
certificate of appealability when it enters a final order adverse
to

the

applicant”

in

such

cases.

If

the

court

denies

the

certificate, “the parties may not appeal the denial but may seek a
certificate from the court of appeals under Federal Rule of
Appellate Procedure 22.”

28 U.S.C. foll. § 2255(a).

The Court finds it inappropriate to issue a certificate of
appealability

in

this

matter

because

Martin

has

not

made

a

“substantial showing of the denial of a constitutional right.” See
28 U.S.C. § 2253(c)(2).
demonstrating

that

A petitioner satisfies this standard by

reasonable

jurists

would

find

that

any

assessment of the constitutional claims by the district court is
debatable or wrong, and that any dispositive procedural ruling by
the

district

court

is

likewise

debatable.

Cockrell, 537 U.S. 322, 336–38 (2003).

See

Miller–El

v.

Upon review of the record,

the Court concludes that Martin has failed to make the requisite
showing, and DENIES a certificate of appealability.

20

MARTIN V. USA

1:13CV149

MEMORANDUM OPINION AND ORDER DENYING § 2255 MOTION
AND DISMISSING THE CASE WITH PREJUDICE
CONCLUSION
For all of the reasons discussed, the Court DENIES Martin’s §
2255 motion and DISMISSES the case WITH PREJUDICE.
It is so ORDERED.
The Court
Memorandum

DIRECTS

Opinion

and

the Clerk to transmit copies of this
Order

to

counsel

of

record

and

the

petitioner, certified mail, return receipt requested, to enter a
separate judgment order, and to remove this case from the Court’s
active docket.
DATED:

July 6, 2016.
/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE

21