Gardner v. USA
Filing
19
MEMORANDUM OPINION AND ORDER DENYING 2255 MOTION (DKT. NO. 1 ) AND DISMISSING CASE WITH PREJUDICE. The Clerk is directed to enter a separate judgment order in this matter. Signed by Senior Judge Irene M. Keeley on 6/28/19. (mh) (Copy PS Petitioner via cert mail) (Additional attachment(s) added on 6/28/2019: # 1 Certified Mail Return Receipt) (mh).
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
RYAN DEE GARDNER,
Petitioner,
v.
Civil Action No. 1:16CV110
Criminal Action No. 1:15CR22
(Judge Keeley)
UNITED STATES OF AMERICA,
Respondent.
MEMORANDUM OPINION AND ORDER DENYING § 2255 MOTION
[DKT. NO. 1]1 AND DISMISSING CASE WITH PREJUDICE
Pending before the Court is the Motion Under 28 U.S.C. § 2255
to Vacate, Set Aside, or Correct Sentence filed by the pro se
petitioner, Ryan Dee Gardner (“Gardner”), in which he alleges that
he entered into an involuntary plea agreement based on ineffective
assistance of counsel. For the reasons that follow, the Court
DENIES Gardner’s § 2255 motion (Dkt. No. 1), and DISMISSES this
case WITH PREJUDICE.
I. BACKGROUND
Gardner
was
the
sole
defendant
named
in
a
one-count
Information filed in this Court on February 11, 2015 (Case No.
1:15CR22, Dkt. No. 15). Pursuant to a written plea agreement,
Gardner waived his right to have his case presented to a federal
grand jury and pleaded guilty on February 12, 2015, to one count of
1
All docket numbers, unless otherwise noted, refer to Civil
Action Number 1:16CV110.
GARDNER V. UNITED STATES
1:16CV110
1:15CR22
MEMORANDUM OPINION AND ORDER DENYING § 2255 MOTION
[DKT. NO. 1] AND DISMISSING CASE WITH PREJUDICE
distribution of oxycodone, in violation of 21 U.S.C. §§ 841(a)(1)
and 841(b)(1)(C) (Case No. 1:15CR22, Dkt. Nos. 22; 24). Following
the entry of Gardner’s guilty plea, the Probation Officer prepared
and disclosed a presentence report, which recommended that the
Court apply a two-level sentencing enhancement under U.S.S.G.
§ 2D1.1(b)(1) for the possession of a firearm in connection with
the offense.
Although Gardner, by counsel, filed an objection to the
Probation
Officer’s
recommendation,
he
later
withdrew
that
objection (Case No. 1:15CR22, Dkt. No. 59 at 5-6). At sentencing,
the
Court
applied
the
two-level
enhancement
under
U.S.S.G.
§ 2D1.1(b)(1), and sentenced Gardner to 70 months imprisonment, the
lowest end of the applicable guideline range, to be followed by 3
years of supervised release (Case No. 1:15CR22, Dkt. No. 32).
Gardner did not appeal his conviction or sentence.
On June 7, 2016, Gardner filed his pro se Motion Under 28
U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence, which he
later re-filed on the court-approved form (Dkt. Nos. 1, 5). In his
motion, Gardner claims that he is entitled to relief under § 2255
based on the ineffective assistance of his counsel during plea
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GARDNER V. UNITED STATES
1:16CV110
1:15CR22
MEMORANDUM OPINION AND ORDER DENYING § 2255 MOTION
[DKT. NO. 1] AND DISMISSING CASE WITH PREJUDICE
negotiations (Dkt. No. 5 at 5).2 Specifically, Gardner contends
that his counsel was ineffective for advising him that he would not
receive a firearm enhancement at sentencing. Id. While Gardner’s
motion does not specify the precise relief sought, he requests
discovery in the case, an evidentiary hearing, and the appointment
of counsel. Id. at 13; Dkt. No. 16 at 6.
In its response, the government argues that Gardner has failed
to satisfy the two-pronged analysis provided by Strickland v.
Washington, 466 U.S. 668, 687 (1984), to establish a right to an
amended sentence or new trial based upon ineffective assistance of
counsel (Dkt. No. 15 at 6-11). In his reply, Gardner reiterates his
contentions about his attorney’s failure to correctly advise him
about the potential sentence (Dkt. No. 16 at 2-5). Accordingly, the
motion is now fully briefed and ripe for decision.
II. STANDARDS OF REVIEW
A.
Pro Se Pleadings
The Court must liberally construe pro se pleadings. Estelle v.
Gamble, 429 U.S. 97, 106 (1976); Loe v. Armistead, 582 F.2d 1291,
2
Although Gardner’s motion asserts several additional grounds
for relief, he concedes in his reply brief that those grounds
“must be withdrawn” as procedurally defaulted (Dkt. No. 16 at 2).
Accordingly, the Court will consider only the claim relating to
the alleged ineffective assistance of his counsel.
3
GARDNER V. UNITED STATES
1:16CV110
1:15CR22
MEMORANDUM OPINION AND ORDER DENYING § 2255 MOTION
[DKT. NO. 1] AND DISMISSING CASE WITH PREJUDICE
1295 (4th Cir. 1978). A pro se petition is subject to dismissal,
however, if the Court cannot reasonably read the pleadings to state
a valid claim on which the petitioner could prevail. Barnett v.
Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999). A court may not
construct the petitioner’s legal arguments for him, nor should it
“conjure up questions never squarely presented.” Beaudett v. City
of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).
B.
§ 2255 Motions
Title 28 U.S.C. § 2255(a) permits federal prisoners, who are
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 evidence. See Miller v. United States, 261
F.2d 546, 547 (4th Cir. 1958).
III. DISCUSSION
As noted, Gardner claims ineffective assistance of counsel
relating to the advice his attorney allegedly provided prior to the
entry of his guilty plea. Gardner argues that the erroneous advice
4
GARDNER V. UNITED STATES
1:16CV110
1:15CR22
MEMORANDUM OPINION AND ORDER DENYING § 2255 MOTION
[DKT. NO. 1] AND DISMISSING CASE WITH PREJUDICE
provided by his counsel during plea negotiations prevented him from
entering a knowing and voluntary guilty plea. Specifically, Gardner
asserts that his attorney was “ineffective” because he failed to
correctly
advise
him
about
the
applicability
of
a
two-level
sentencing enhancement under § 2D1.1(b)(1) (Dkt. Nos. 5 at 5).
For the reasons explained below, the Court concludes that,
even assuming that counsel’s performance was deficient, Gardner did
not suffer any prejudice as required by the standard articulated in
Strickland v. Washington, 466 U.S. 668 (1984).
A.
Strickland Standard
The
Sixth
Amendment
to
the
United
States
Constitution
guarantees criminal defendants the right to effective assistance of
counsel during their criminal proceedings. The Court’s review of
Gardner’s ineffective assistance of counsel claim is guided by the
conjunctive, two-prong analysis outlined in Strickland:
A convicted defendant’s claim that counsel’s assistance
was so defective as to require reversal of a conviction
. . . has two components. First, the defendant must show
that counsel’s performance was deficient. This requires
showing that counsel made errors so serious that counsel
was not functioning as the “counsel” guaranteed the
defendant by the Sixth Amendment. Second, the defendant
must show that the deficient performance prejudiced the
defense. This requires showing that counsel’s errors were
so serious as to deprive the defendant of a fair trial,
a trial whose result is reliable.
5
GARDNER V. UNITED STATES
1:16CV110
1:15CR22
MEMORANDUM OPINION AND ORDER DENYING § 2255 MOTION
[DKT. NO. 1] AND DISMISSING CASE WITH PREJUDICE
466 U.S. at 687.
In
order
to
satisfy
Strickland’s
deficiency
prong,
a
petitioner must demonstrate the objective unreasonableness of his
attorney’s performance. Id. at 688. Further, “[j]udicial scrutiny
of counsel’s performance must be highly deferential.” Id. at 689.
Thus, a reviewing court with the benefit of hindsight must not
second-guess those decisions of counsel which, given the totality
of the circumstances at the time of trial, “might be considered
sound trial strategy.” Id. (quoting Michel v. State of La., 350
U.S. 91, 101 (1955)). The Court “must indulge a strong presumption
that counsel’s conduct falls within the wide range of reasonable
professional
assistance”
when
evaluating
whether
counsel’s
performance was ineffective. Id. at 689.
In order to satisfy Strickland’s prejudicial effect prong,
“the defendant must show there is a reasonable probability that,
but
for
counsel’s
unprofessional
errors,
the
result
of
the
proceeding would have been different. A reasonable probability is
a probability sufficient to undermine confidence in the outcome.”
Id. at 694. Further, Strickland makes clear that either prong of
its test for ineffective assistance of counsel may be analyzed
first, and thus, if no prejudice is shown by a petitioner, a court
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GARDNER V. UNITED STATES
1:16CV110
1:15CR22
MEMORANDUM OPINION AND ORDER DENYING § 2255 MOTION
[DKT. NO. 1] AND DISMISSING CASE WITH PREJUDICE
need not analyze counsel’s performance. Id. at 697; Fields v. Att’y
Gen. of Maryland, 956 F.2d 1290, 1297 (4th Cir. 1992), cert.
denied, 506 U.S. 885 (1992).
B.
Knowing and Voluntary Guilty Plea
A
criminal
defendant’s
right
to
effective
assistance
of
counsel extends to the plea-bargaining process. However, “[i]t is
well-established that a voluntary and intelligent guilty plea
forecloses federal collateral review of allegations of antecedent
constitutional deprivations.” Fields v. Att’y Gen. Of Maryland, 956
F.2d 1290, 1294 (4th Cir. 1992); see also Tollett v. Henderson, 411
U.S. 258, 266 (1973). A voluntary and intelligent guilty plea
amounts to an admission of the material elements of the charged
crime, McCarthy v. United States, 394 U.S. 459, 466 (1969);
consequently, it generally constitutes a waiver of all claims
relating to non-jurisdictional errors that occurred prior to the
plea. United States v. Partlow, 301 Fed.Appx. 297, 298 (4th
Cir. 2008)(citing Tollett, 411 U.S. at 267); see also United States
v.
McCleary,
No.
95–6922,
1977
WL
215525
(4th
Cir.
May
1,
1997)(unpublished)).
“Thus[,] where a defendant does not challenge the jurisdiction
of
the
courts
‘power
to
enter
7
the
conviction
of
impose
the
GARDNER V. UNITED STATES
1:16CV110
1:15CR22
MEMORANDUM OPINION AND ORDER DENYING § 2255 MOTION
[DKT. NO. 1] AND DISMISSING CASE WITH PREJUDICE
sentence,’ ‘the inquiry is ordinarily confined to whether the
underlying plea was both counseled and voluntary.”’ United States
v. Fabian, 798 F.Supp.2d 647, 669 (D. Md. 2011) (quoting United
States v. Broce, 488 U.S. at 569 (1989)). When examining an
ineffective assistance of counsel claim in the face of a guilty
plea, the “focus of federal habeas inquiry is the nature of the
advice and the voluntariness of the plea not the existence as such
of an antecedent constitutional infirmity.” Tollett, 411 U.S. at
266; see also Fields, 956 F.2d at 1297 n.17 (the [c]onduct of
counsel occurring prior to entry of a guilty plea may be examined
in
evaluating
the
extent
to
which
the
prior
representation
influenced the voluntary and intelligent character of the guilty
plea entered”).
Moreover, a defendant who alleges ineffective assistance of
counsel following the entry of a guilty plea, as Gardner does here,
is
subject
prejudice
to
an
prong:
even
he
higher
“must
show
burden
that
regarding
there
is
Strickland’s
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.
Lockhard, 474 U.S. 52, 59 (1985); Hooper v. Garraghty, 845 F.2d
471, 475 (4th Cir. 1988), cert. denied, 488 U.S. 843 (1988).
8
GARDNER V. UNITED STATES
1:16CV110
1:15CR22
MEMORANDUM OPINION AND ORDER DENYING § 2255 MOTION
[DKT. NO. 1] AND DISMISSING CASE WITH PREJUDICE
C.
Analysis
In his motion, Gardner argues that, prior to entering a plea,
his attorney “promised [him] vehemently” that if he pled guilty,
“the government would forego” a two-level sentencing enhancement
for the possession of a firearm in connection to the offense (Dkt.
No. 5 at 5). Gardner contends that his counsel’s performance fell
below Strickland’s objective standard because his counsel failed to
properly inform him of his sentence exposure in accordance with the
plea agreement (Dkt. Nos. 5 at 5; 16 at 2). He further contends
that, due to his attorney’s ineffectiveness, he was unable to make
an intelligent decision on whether to enter a guilty plea or
proceed to trial (Dkt. No. 16 at 2).
In Marchibroda v. United States, 368 U.S. 487 (1962), the
Supreme Court vacated and remanded for further proceedings the
decision of the Sixth Circuit Court of Appeals affirming a district
court order that had denied a § 2255 petition without a hearing
when that petition contained detailed factual allegations that
challenged the voluntary nature of the defendant’s plea. One year
later, however, in United States v. Davis, 319 F.2d 482, 484-485
(6th Cir. 1963), the Sixth Circuit Court of Appeals commented on
what it believed the proper reach of Marchibroda to be:
9
GARDNER V. UNITED STATES
1:16CV110
1:15CR22
MEMORANDUM OPINION AND ORDER DENYING § 2255 MOTION
[DKT. NO. 1] AND DISMISSING CASE WITH PREJUDICE
We do not construe Marchibroda [ ], upon which appellant
relies, as requiring a hearing in all cases in which a
factual issue is raised by appellant's motion to vacate.
In the Marchibroda case, the transcript of the
arraignment shows that the District Judge accepted a plea
of guilty from the defendant, who was represented by
counsel, without questioning the defendant about it being
entered voluntarily, free from any threats or coercion or
promises of any kind.
Indeed, when the full protections of a Rule 11 hearing are
present, “the representations of the defendant, his lawyer, and the
prosecutor at such a hearing, as well as any findings made by the
judge accepting the plea, constitute a formidable barrier in any
subsequent collateral proceedings. Solemn declarations in open
court carry a strong presumption of verity.” Blackledge v. Allison,
431 U.S. 63, 73-74
produce
a
(1977). That is because “Rule 11 is intended to
complete
voluntariness
of
the
record
guilty
of
the
plea
factors
and,
relevant
thereby,
to
to
the
forestall
subsequent controversy as to voluntariness.” Raines v. United
States, 423 F.2d 526, 530 (4th Cir. 1970).
In this case, Gardner had the full protection of a Rule 11
hearing. On February 12, 2015, Gardner appeared, with his counsel,
before United States Magistrate Judge John S. Kaull. During that
hearing, Magistrate Judge Kaull summarized the terms of the plea
agreement in open court. See Plea Hearing Transcript, Case No.
10
GARDNER V. UNITED STATES
1:16CV110
1:15CR22
MEMORANDUM OPINION AND ORDER DENYING § 2255 MOTION
[DKT. NO. 1] AND DISMISSING CASE WITH PREJUDICE
1:15CR22, Dkt. No. 58 at 6-9. Gardner testified under oath that he
had throughly reviewed the plea agreement with his counsel. Id. at
23. He further testified that he understood all of the terms and
provisions of the plea agreement. Id. In addition, he testified
that no one had threatened him or attempted to force him to plead
guilty, and that it was his own free and voluntary decision to
plead guilty. Id. at 27; 37. Finally, Gardner testified that he was
completely satisfied with the legal assistance, the counseling, the
actions, and the advice that his counsel provided him in the case.
Id.
at
22.
He
then
admitted
his
guilt
to
Count
One
of
the
Information. Id. at 42-43.
Upon review, the Court finds that Gardner engaged in a long
colloquy and at no time stated that his attorney had promised him
a certain sentence or that he would not be subject to a particular
sentencing enhancement. In fact, Gardner’s assertion that his
attorney “promised [him] vehemently” that he would not receive a
two-level enhancement for the possession of a firearm is directly
contradicted by his own statements during the colloquy. When
Magistrate Judge Kaull asked Gardner if his attorney had made any
promises regarding the actual sentence he would receive, Gardner
replied that his counsel had not:
11
GARDNER V. UNITED STATES
1:16CV110
1:15CR22
MEMORANDUM OPINION AND ORDER DENYING § 2255 MOTION
[DKT. NO. 1] AND DISMISSING CASE WITH PREJUDICE
THE COURT: Did [your attorney] promise you how much
time you were going to get, sir?
DEFENDANT: Did he promise me that?
THE COURT: Yes, sir.
DEFENDANT: He didn’t promise me anything.
***
THE COURT: Do you understand that [your attorney]
cannot promise you what your actual sentence is going
to be or any–or whether–anything else?
DEFENDANT: Yes I understand.
THE COURT: And the reason he can’t do that is because
only a District Judge sets the sentence and the District
Judge isn’t going to do that for some eight to ten weeks
from now and the District Judge won’t do it until she’s-he or she has received– . . . the Presentence
Investigation Report and has had a chance to review it,
any objections to it and had a sentencing hearing in your
case. Do you understand that?
DEFENDANT: Yes, sir.
See id. at 21 (emphasis added). And, when Magistrate Judge Kaull
later engaged Gardner in a similar line of questioning about his
exposure
under
the
plea
agreement,
Gardner
confirmed
his
understanding that his attorney could not guarantee his sentence in
the case:
THE COURT: Do you completely understand that you cannot
take what [your attorney] showed you on the guideline
chart as his promise to you or his guarantee to you that
12
GARDNER V. UNITED STATES
1:16CV110
1:15CR22
MEMORANDUM OPINION AND ORDER DENYING § 2255 MOTION
[DKT. NO. 1] AND DISMISSING CASE WITH PREJUDICE
at sentencing Judge Keeley will see it the same way he
did?
DEFENDANT: Yes.
THE COURT: And do you understand that if Judge Keeley
does not see it the same way and imposes a sentence that
is different from what [your attorney] may have
projected on the guidelines, you will not then be able
to withdraw your guilty plea?
DEFENDANT: Yes, sir.
THE COURT: And do you further understand that you won’t
be able to say but for what [your attorney] told me I
would’ve not pled guilty; he was ineffective; I want to
withdraw my guilty plea? Do you understand that, sir?
DEFENDANT: Yes, sir.
Id. at 33.
Further, Gardner’s signed plea agreement stated that the
“[t]here have been no representations whatsoever by . . . the
United States . . . , as to what the final disposition in the
matter should or will be,” and that “[t]here are no agreements,
understandings or promises between the parties other than those
contained in the agreement.” (Case No. 1:15CR22, Dkt. No. 24 at 2,
4).
These
facts,
which
Gardner
acknowledged
during
his
plea
hearing, would necessarily eliminate any belief that the government
agreed to “forego” the two-level firearm enhancement or any belief
that such an agreement would be meaningful at sentencing.
13
GARDNER V. UNITED STATES
1:16CV110
1:15CR22
MEMORANDUM OPINION AND ORDER DENYING § 2255 MOTION
[DKT. NO. 1] AND DISMISSING CASE WITH PREJUDICE
Finally, to the extent that Gardner argues that he was
“prejudiced”
by
his
counsel’s
advice
because
he
could
have
otherwise raised a viable defense of “sentencing entrapment” or
“sentencing manipulation” (Dkt. No. 16 at 5), this argument is also
unavailing. According to Gardner, the evidence in the case would
have provided for a viable defense of entrapment as it relates to
the firearm involved in the offense conduct. Liberally construed,
Gardner claims that had he known the firearm would be considered at
sentencing, he would not have entered a guilty plea and would have
insisted on going to trial, including on any firearm offenses that
the government may have brought against him.
As discussed above, to satisfy Strickland’s prejudice prong,
Gardner “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, 474 U.S. at 59; Hooper, 845
F.2d at 475. “In many guilty plea cases, the ‘prejudice’ inquiry
will closely resemble the inquiry engaged in by courts reviewing
ineffective-assistance challenges to convictions obtained through
a trial.” Hill, 474 U.S. at 59. For example, “where the alleged
error of counsel is a failure to advise the defendant of a
potential affirmative defense to the crime charged, the resolution
14
GARDNER V. UNITED STATES
1:16CV110
1:15CR22
MEMORANDUM OPINION AND ORDER DENYING § 2255 MOTION
[DKT. NO. 1] AND DISMISSING CASE WITH PREJUDICE
of the ‘prejudice’ inquiry will depend largely on whether the
affirmative defense likely would have succeeded at trial.” Id.
(citing Evans v. Meyer, 742 F.2d 371, 375 (CA7 1984) (“It is
inconceivable to us ... that [the defendant] would have gone to
trial on a defense of intoxication, or that if he had done so he
either
would
have
been
acquitted
or,
if
convicted,
would
nevertheless have been given a shorter sentence than he actually
received”)).
Here, Gardner has failed to show that there is a reasonable
probability that “but for” his attorney’s alleged failure to
correctly advise him about the government’s intent to seek a twolevel firearm enhancement at sentencing, he would not have pleaded
guilty and would have insisted on going to trial. Notably, Gardner
did not plead guilty to a firearm offense. Nor was he even charged
with a firearm offense in this case. Rather, Gardner pleaded guilty
to the distribution of oxycodone. Thus, it is not “reasonably
probable” that Gardner would have proceeded to trial on a defense
of entrapment in a case involving one or more drug distribution
charges, or “that if he had done so, would have been acquitted or,
if convicted, would nevertheless have been given a shorter sentence
than he actually received in the case.” Evans, 742 F.2d at 375. In
15
GARDNER V. UNITED STATES
1:16CV110
1:15CR22
MEMORANDUM OPINION AND ORDER DENYING § 2255 MOTION
[DKT. NO. 1] AND DISMISSING CASE WITH PREJUDICE
short, Gardner has failed to show that his counsel’s advice, even
if
deficient,
affected
the
outcome
of
the
plea
process.
Accordingly, Gardner’s allegations are insufficient to satisfy the
prejudice required by Strickland.
Moreover,
regardless
of
whether
Gardner’s
attorney
was
deficient in advising him about the potential application of the
firearm enhancement, the plea colloquy further establishes that
this alleged failure did not prejudice Gardner. During the Rule 11
hearing,
Gardner
confirmed
that
his
attorney
had
thoroughly
explored all potential alternatives to an admission of guilt in the
case:
THE COURT: Did you and [your attorney] discuss, explore
with each other, whether there was any possible defense
that you could raise to these charges?
DEFENDANT: Yes, sir.
THE COURT: After exploring them, did you come to a
conclusion in your mind, on your own, that there were no
defenses to use?
DEFENDANT: Yes, sir.
THE COURT: Did you tell [your attorney] about any and all
witnesses you thought be able to help you? Is that–
you’re shaking your head no, is that correct?
DEFENDANT: I mean we talked about it, yes, sir.
THE COURT: Did [your attorney] interview them?
16
GARDNER V. UNITED STATES
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1:15CR22
MEMORANDUM OPINION AND ORDER DENYING § 2255 MOTION
[DKT. NO. 1] AND DISMISSING CASE WITH PREJUDICE
DEFENDANT: No, sir.
THE COURT: Is that because they weren’t worthy of being
interviewed in your mind?
DEFENDANT: No, it wasn’t that.
THE COURT: Why didn’t you have him interview them?
DEFENDANT: I mean I just know I was guilty and there
wasn’t no need to go through all of that.
See Case No. 1:15CR22, Dkt. No. 58 at 18-19.
Thus, based on Gardner’s own unequivocal statements during the
Rule
11
hearing,
the
Court
finds
that
Gardner’s
assertions
regarding the knowing and voluntary nature of his guilty plea are
refuted by the record. And, even assuming that Gardner’s attorney
misadvised him about the possible application of a particular
sentencing enhancement, any prejudice by this advice was cured by
the
language
of
the
plea
agreement
and
Gardner’s
own
acknowledgments during the thorough plea colloquy.
V. CERTIFICATE OF APPEALABILITY
Pursuant
to
Rule
11(a)
of
the
Rules
Governing
§
2255
Proceedings, 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
17
GARDNER V. UNITED STATES
1:16CV110
1:15CR22
MEMORANDUM OPINION AND ORDER DENYING § 2255 MOTION
[DKT. NO. 1] AND DISMISSING CASE WITH PREJUDICE
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 Gardner has not made a
“substantial showing of the denial of a constitutional right.” See
28 U.S.C. § 2253(c)(2). A petitioner satisfies this standard by
demonstrating
that
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.
See
Miller–El
v.
Cockrell, 537 U.S. 322, 336–38 (2003). Upon review of the record,
the Court concludes that Gardner has failed to make the requisite
showing, and DENIES a certificate of appealability.
VI. CONCLUSION
In conclusion, for the reasons discussed, the Court DENIES
Gardner’s § 2255 motion (Dkt. No. 1), and DISMISSES this case WITH
PREJUDICE.
It is so ORDERED.
The Court DIRECTS the Clerk to enter a separate judgment
order, to transmit copies of both orders to counsel of record and
the pro se petitioner, certified mail, return receipt requested,
18
GARDNER V. UNITED STATES
1:16CV110
1:15CR22
MEMORANDUM OPINION AND ORDER DENYING § 2255 MOTION
[DKT. NO. 1] AND DISMISSING CASE WITH PREJUDICE
and to strike this case from the Court’s active docket.
DATED: June 28, 2019
/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE
19
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