Brown v. United States

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF NORTH CAROLINA

ASHEVILLE DIVISION

CIVIL CASE NO. 1:19-cv-00334-MR

(CRIMINAL CASE NO. 1:16-cr-00064-MR-WCM-1)

MARQUISE BROWN, )

)

Petitioner, )

) MEMORANDUM OF

vs. ) DECISION AND ORDER

)

UNITED STATES OF AMERICA, )

)

Respondent. )

___________________________ )

THIS MATTER is before the Court on Petitioner’s pro se Motion to

Vacate, Set Aside or Correct Sentence under 28 U.S.C. § 2255 [Doc. 1].

I. BACKGROUND

On May 18, 2016, Petitioner was charged along with fifteen co-

defendants in a Bill of Indictment with participating in a crack cocaine

distribution conspiracy. [Doc. 3]. Specifically, Petitioner was charged with

one count of conspiracy to possess with intent to distribute 280 grams or

more of a mixture or substance containing a detectable amount of cocaine

base (Count One); two counts of possession with intent to distribute cocaine

base (Counts Fifteen and Forty-Two); and five counts of distribution of

cocaine base (Counts Fifty-One, Sixty-One, Sixty-Three, Sixty-Four, and

Sixty-Five). [Criminal Case No. 1:16-cr-00064 (“CR”), Doc. 3: Bill of

Indictment]. On April 14, 2017, Petitioner pled guilty to the conspiracy charge

in Count One in exchange for the Government’s dismissal of the remaining

charges. [CR Doc. 379].

The Plea Agreement advised Petitioner that he faced “a minimum term

of ten years imprisonment [and] a maximum term of life imprisonment” with

respect to Count One. [CR Doc. 379 at 2]. Pursuant to the Plea Agreement,

the parties agreed to jointly recommend to the Court that “[t]he amount of

cocaine base . . . that was known or reasonably foreseeable by the defendant

was 311.5 grams (from interceptions between March 20, 2015 and April 24,

2015 and then video surveillance between June 19, 2015 and June 20,

2015).” [Id.]. The Government further agreed to recommend up to a two-

level reduction for acceptance of responsibility, if applicable, and for timely

entry of the plea for purposes of U.S. Sentencing Guidelines § 3E1.1(b). The

Plea Agreement set forth the rights Petitioner was waiving by pleading guilty,

including the right to a jury trial, the right to assistance of counsel at trial, the

right of confrontation, and the right against self-incrimination. [Id. at 5].

Petitioner expressly agreed to waive his appellate and post-conviction rights

except claims of ineffective assistance of counsel or prosecutorial

misconduct. [Id.].

The parties further agreed that there was a factual basis for the guilty

plea, and they executed a written Factual Basis, which Petitioner

acknowledged could be used by the U.S. Probation Office and the Court in

determining the applicable advisory guideline range or the appropriate

sentence unless Petitioner explicitly reserved an objection. [CR Doc. 380 at

1].

The 37-page Factual Basis detailed the Government’s investigation

and summarized the evidence in the case. Section M of the Factual Basis

detailed intercepts that revealed Petitioner to be the primary source of

cocaine base for Petitioner’s co-defendant Tyquise Deandre Griffin and an

alternate source of cocaine base for co-defendant Tyler McAfee. Included

in this recitation was a chart listing the intercepts and the quantities of

controlled substances sold or discussed during those intercepts:

DATE TARGET SUPPLIER CUSTOMER/ QUANTITY SOLD/

TELEPHONE WHOLESALE DISCUSSED

# DEALER

3/20/15 TT2 BROWN TYQUISE GRIFFIN went

[COUNT 15] through 2 already,

almost 3 ounces.

Transfer of $1,700.

3/26/15 TT2 BROWN TYQUISE 2 ½ ounces of crack

4/5/15 TT2 BROWN TYQUISE GRIFFIN has 3 ½

[COUNT 42] ounces of crack left.

GRIFFIN has

$3,000 to $4,000 for

BROWN.

4/10/15 TT2 BROWN TYQUISE GRIFFIN is down to

[COUNTS 51 his last ounce of

AND 52] crack, has $4,000

for BROWN and

then gets a “zip” or

ounce of crack from

BROWN.

4/16/15 TT2 MCAFEE TYQUISE 13.5 grams of crack

[COUNTS 55

and 56]

4/17/15 TT2 MCAFEE TYQUISE ¼ ounce or 7 grams

[COUNTS 57 of crack

and 58]

[CR Doc. 380 at 15]. The “Drug Totals” section of the Factual Basis stated,

without objection from Petitioner, that Petitioner was individually responsible

for 311.5 grams of crack cocaine that was bought, seized or intercepted over

wiretaps during the course of the investigation. [CR Doc. 380 at 36].

Petitioner appeared before Magistrate Judge Howell on April 14, 2017,

for a Rule 11 hearing. [CR Doc. 462]. At that time, Petitioner stated under

oath in open court that he had reviewed the Indictment and Plea Agreement

with counsel and was pleading guilty to Count One. [CR Doc. 462 at 5].

Judge Howell read Count One aloud, including the amount of cocaine base

charged, and Petitioner confirmed that he was pleading guilty to that offense.

[Id. at 6-7]. Judge Howell recited the elements of the offense aloud. [Id. at

7-8]. Petitioner stated that he understood each of the elements of the offense

and that the Government would be required to prove each of those elements

beyond a reasonable doubt if Petitioner pled not guilty. [Id. at 8]. Judge

Howell advised Petitioner that, “[b]ased on the amount of substance alleged

in the Bill of Indictment, the maximum possible penalty of this offense is a

term of imprisonment which may not be less than ten years nor more than

life imprisonment,” and Petitioner stated that he understood those minimum

and potential maximum penalties. [Id. at 9-10].

Petitioner further acknowledged: that he had discussed how the U.S.

Sentencing Guidelines may apply to his case with counsel; that he believed

he understood how the Guidelines may apply to him; that the Court would

not be bound by the Guidelines in reaching the sentence; and that in the

event that the sentence was more severe than Petitioner expected or the

Court did not accept the Government’s sentencing recommendation,

Petitioner would still be bound by the plea and would have no right to

withdraw it. [Id. at 11-12]. Petitioner also acknowledged each of the rights

he was waiving by pleading guilty, including the right to a speedy trial, the

right to summon and confront witnesses, the right to be presumed innocent,

the right to require the Government to prove his guilt beyond a reasonable

doubt, and the right to have the assistance of counsel at trial. [Id. at 13-15].

Petitioner admitted that he was, in fact, guilty of Count One and that he had

committed the acts as described in that Count of the Indictment. [Id. at 14].

The prosecutor then read the Factual Basis into the record, including the

March 26, 2015 intercept regarding 2.5 ounces of crack and the total amount

of 311.5 grams of crack cocaine for which Petitioner was responsible. [Id. at

15-21]. Petitioner admitted that everything that the prosecutor had stated

with respect to what he believed the Government could prove at trial was

true and accurate. [Id. at 20]. Petitioner further admitted that he had read

the Factual Basis, and that everything in the document that related to his

conduct was true and accurate. [Id. at 21]. Petitioner also signed a

Certification under oath to that effect. [Id.]. Petitioner confirmed that he was

pleading guilty freely and voluntarily and that his plea was not the product of

threats or coercion. [Id. at 22]. Petitioner stated that he understood and

agreed with the terms of the Plea Agreement and specifically agreed to the

post-conviction and appellate waivers. [Id. at 25]. Petitioner further

acknowledged that he had had ample time to discuss possible defense with

his attorney, that he had told counsel everything that he wanted him to know

about his case, and that he was satisfied with counsel’s services. [Id. at 26].

Based on Petitioner’s representations, Judge Howell concluded that the plea

was knowing and voluntary and was supported by an independent factual

basis, and he therefore accepted the plea. [Id. at 27].

In the Presentence Investigation Report (“PSR”), the probation officer

calculated a base offense level of 30 for Count One based on Petitioner

being responsible for 311.5 grams of crack cocaine. [CR Doc. 419 at ¶ 17].

The probation officer recommended deducting three levels for acceptance of

responsibility, resulting in a total offense level of 27. [Id. at ¶¶ 24-26]. Based

on Petitioner’s criminal record, the probation officer calculated a criminal

history category of III, which resulted in a Guidelines range of 87 to 108

months’ imprisonment. [Id. at ¶¶ 53-54]. However, because the statutory

minimum for this offense was ten years, see 21 U.S.C. § 841(b)(1)(A), the

guideline term of imprisonment became 120 months. [CR Doc. 419 at ¶ 80].

Neither party filed objections to the PSR. [See CR Doc. 458 at 9].

This Court held a sentencing hearing on August 17, 2017. [CR Doc.

458]. At that time, Petitioner advised the Court under oath that he still

intended to plead guilty; that his plea had been freely and voluntarily entered;

and that he was pleading guilty because he did in fact commit the crime with

which he was charged. [Id. at 6]. The parties stipulated to the existence of

a factual basis for the plea. [Id. at 7-8]. Petitioner acknowledged that he had

had an opportunity to review the PSR with counsel and that he understood

its contents. [Id. at 8]. The Court accepted the PSR as written. [Id. at 10].

Counsel for both sides asked the Court to impose the mandatory

minimum term of 120 months’ imprisonment. [Id. at 12]. The Court

sentenced Petitioner to 120 months’ imprisonment followed by five years of

supervised release. [Id. at 14-15; CR Doc. 432]. Petitioner did not appeal.

On December 4, 2017, Petitioner filed a § 2255 Motion to Vacate

arguing, inter alia, that counsel had failed to file a notice of appeal as

requested. [Civil Case No. 1:17-cv-00337-MR, Doc. 1]. The Court granted

relief [Civil Case No. 1:17-cv-00337-MR, Doc. 4] and entered an Amended

Judgment so that Petitioner could file a direct appeal [CR Doc. 449].

Counsel filed a memorandum brief on direct appeal pursuant to Anders

v. California, 386 U.S. 738 (1967), concluding that there were no meritorious

grounds for appeal, but questioning whether plain error occurred when

Petitioner pled guilty to an indictment alleging a drug offense with a ten-year

minimum mandatory sentence and whether trial counsel rendered effective

assistance. Petitioner filed a pro se brief arguing that there was no factual

basis to support the plea and that the Government incorrectly calculated the

drug quantity attributable to him. The Fourth Circuit Court of Appeals affirmed

on February 5, 2019, concluding that Petitioner’s guilty plea was knowing

and voluntary and that Petitioner’s plea was supported by a sufficient factual

basis. United States v. Brown, 755 F. App’x 251 (4th Cir. 2019). The Fourth

Circuit further found that there was no conclusive evidence of ineffective

assistance of counsel on the face of the record and that any such claims

should be raised, if at all, in a § 2255 petition. Id.

Petitioner filed the instant § 2255 Motion to Vacate on November 15,

2019. In his Motion, Petitioner argues that he received ineffective assistance

of counsel both before this Court and on appeal; that the prosecutor engaged

in misconduct by misrepresenting the amount of cocaine base attributable to

him; and that this Court committed plain error by accepting the Factual Basis

and calculating Petitioner’s sentence. Petitioner asks the Court to vacate his

sentence and resentence him based on the correct application of the drug

amounts charged in the Indictment. [Doc. 1].

II. STANDARD OF REVIEW

A federal prisoner claiming that his “sentence was imposed in violation

of the Constitution or the laws of the United States, or that the court was

without jurisdiction to impose such sentence, or that the sentence was in

excess of the maximum authorized by law, or is otherwise subject to

collateral attack, may move the court which imposed the sentence to vacate,

set aside or correct the sentence.” 28 U.S.C. § 2255(a).

Rule 4(b) of the Rules Governing Section 2255 Proceedings provides

that courts are to promptly examine motions to vacate, along with “any

attached exhibits and the record of prior proceedings . . .” in order to

determine whether the petitioner is entitled to any relief on the claims set

forth therein. After examining the record in this matter, the Court finds that

the arguments presented by Petitioner can be resolved without an

evidentiary hearing based on the record and governing case law. See

Raines v. United States, 423 F.2d 526, 529 (4th Cir. 1970). The Court has

also determined that a response from the Government is unnecessary.

III. DISCUSSION

A. Waiver

“[A] guilty plea constitutes a waiver of all nonjurisdictional defects,

including the right to contest the factual merits of the charges.” United States

v. Willis, 992 F.2d 489, 490 (4th Cir. 1993). Thus, after a guilty plea, a

defendant may not “raise independent claims relating to the deprivation of

constitutional rights that occurred prior to the entry of the guilty plea.”

Blackledge v. Perry, 417 U.S. 21, 29-30 (1974). Rather, he is limited “to

attacks on the voluntary and intelligent nature of the guilty plea, through proof

that the advice received from counsel was not within the range of

competence demanded of attorneys in criminal cases.” Id.

An appellate waiver is generally enforceable where the waiver was

knowingly and voluntarily made. United States v. Marin, 961 F.2d 493, 496

(4th Cir. 1992). The Fourth Circuit does not distinguish between the

enforceability of a waiver of direct-appeal rights from a waiver of collateral-

attack rights in a plea agreement. See United States v. Lemaster, 403 F.3d

216, 200 (4th Cir. 2005). There are narrow exceptions to the enforceability

of plea waivers such that “even a knowing and voluntary waiver of the right

to appeal cannot bar the defendant from obtaining appellate review of certain

claims.” United States v. Johnson, 410 F.3d 137, 151 (4th Cir. 2005). For

instance, because “a defendant who waives his right to appeal does not

subject himself to being sentenced entirely at the whim of the district court[,]

... a defendant could not be said to have waived his right to appellate review

of a sentence imposed in excess of the maximum penalty provided by statute

or based on a constitutionally impermissible factor such as race.” Marin, 961

F.2d at 496.

In the instant case, Judge Howell conducted a thorough Rule 11

colloquy and concluded that Petitioner was pleading guilty knowingly and

voluntarily with a full understanding of his plea’s consequences, including the

appellate and post-conviction waivers. In pleading guilty, Petitioner

specifically admitted that he was guilty of the conspiracy offense charged in

Count One, and that the amount that was reasonably foreseeable by him

was 280 grams or more. Petitioner further admitted as part of the Factual

Basis, which he agreed was true and accurate, that he sold or discussed 2.5

ounces of crack with a co-defendant on March 26, 2015, and that the total

amount of crack cocaine for which he was personally responsible was 311.5

grams. Petitioner’s present unsupported and self-serving attempts to

disavow these admissions are rejected. Blackledge v. Allison, 431 U.S. 63,

74 (1977) (“Solemn declarations in open court carry a strong presumption of

verity. The subsequent presentation of conclusory allegations unsupported

by specifics is subject to summary dismissal, as are contentions that in the

face of the record are wholly incredible.”); see, e.g., Lemaster, 403 F.3d at

221 (“[A]llegations in a § 2255 motion that directly contradict the petitioner’s

sworn statements made during a properly conducted Rule 11 colloquy are

always ‘palpably incredible’ and ‘patently frivolous or false.’”).

B. Ineffective Assistance of Counsel

The Sixth Amendment to the U.S. Constitution guarantees that in all

criminal prosecutions, the accused has the right to the assistance of counsel

for his defense. See U.S. Const. Amend. VI. To show ineffective assistance

of counsel, Petitioner must first establish deficient performance by counsel

and, second, that the deficient performance prejudiced him. See Strickland

v. Washington, 466 U.S. 668, 687-88 (1984). The deficiency prong turns on

whether “counsel’s representation fell below an objective standard of

reasonableness . . . under prevailing professional norms.” Id. at 688. A

reviewing court “must apply a ‘strong presumption’ that counsel’s

representation was within the ‘wide range’ of reasonable professional

assistance.” Harrington v. Richter, 562 U.S. 86, 104 (2011) (quoting

Strickland, 466 U.S. at 689).

The right to the assistance of counsel during criminal proceedings

extends to the plea-bargaining process. See Missouri v. Frye, 566 U.S. 134

(2012). Thus, criminal defendants are “entitled to the effective assistance of

competent counsel” during that process. Lafler v. Cooper, 566 U.S. 156, 162

(2012) (internal quotation marks omitted); Merzbacher v. Shearin, 706 F.3d

356, 363 (4th Cir. 2013). Where a defendant enters his plea upon the advice

of counsel, the voluntariness of the plea depends on whether counsel’s

advice was “within the range of competence demanded by attorneys in

criminal cases.” Hill v. Lockhart, 474 U.S. 52, 56 (1985) (quoting McMann v.

Richardson, 397 U.S. 759, 771 (1970)). To satisfy Strickland’s prejudice

prong, the defendant must show “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, 370; Meyer v. Branker, 506

F.3d 358, 369 (4th Cir. 2007).

The right to the effective assistance of counsel extends to the direct

appeal. Bell v. Jarvis, 236 F.3d 149, 164 (4th Cir. 2000) (en banc). In order

to establish a claim that appellate counsel was ineffective for failing to pursue

a claim on direct appeal, a petitioner must normally demonstrate both

deficient performance and prejudice, meaning that there is a reasonable

probability that but for counsel’s unprofessional errors, the result of the

proceeding would have been different. Id. Effective assistance of appellate

counsel “does not require the presentation of all issues on appeal that may

have merit.” Smith v. Murray, 477 U.S. 527, 536 (4th Cir. 2014) (“winnowing

out weaker arguments on appeal and focusing on those more likely to prevail

. . . is the hallmark of effective appellate advocacy.”) (internal quotations

marks and citations omitted). However, appellate counsel may render

deficient performance by failing to raise “issues [that] are clearly stronger

than those presented.” United States v. Mason, 774 F.3d 824, 828-29 (4th

Cir. 2014). “The ineffective assistance inquiry therefore requires a court to

compare the strength of an issue not raised on direct appeal … with the

strength of the arguments that were raised.” United States v. Allmendinger,

894 F.3d 121, 126 (4th Cir. 2018). To show prejudice, a petitioner must show

a “reasonable probability ... he would have prevailed on his appeal” but for

his counsel’s unreasonable failure to raise an issue. Smith v. Robbins, 528

U.S. 259, 285-86 (2000).

Petitioner’s contentions that trial counsel misadvised him about the

evidence, failed to adequately investigate and prepare the case, and

miscalculated the drug amounts are conclusively refuted by the record.

Petitioner admitted that he was guilty of Count One, which charged a

conspiracy involving 280 grams or more of crack cocaine. He specifically

admitted that the March 26, 2015 intercept between himself and a co-

defendant involved 2.5 ounces of crack, and that the total amount of crack

cocaine for which he was personally responsible was 311.5 grams. These

admissions relieved the Government of its obligation to prove these facts

and relieved defense counsel of the obligation to conduct any further

investigation or prepare for trial. Petitioner’s claims that counsel failed to

adequately prepare for sentencing and object to the total drug quantity and

the 2.5-ounce intercept quantity are contrary to the admissions that

Petitioner made as part of his knowing and voluntary guilty plea. Counsel

cannot be deemed ineffective for failing to object to facts contained in the

PSR that Petitioner admitted under oath in open court. Petitioner’s attempts

to disavow these facts and blame counsel for miscalculating the drug amount

are refuted by his own sworn admissions and are rejected.

Petitioner’s present claims of ineffective assistance are also refuted by

his sworn statements at the Rule 11 hearing that he had ample time to

discuss possible defense with his attorney, that he told counsel everything

that he wanted him to know about his case, and that he was satisfied with

counsel’s services.

Moreover, Petitioner has failed to demonstrate prejudice. He only

seeks sentencing relief and does not seek to withdraw his plea. Therefore,

he has failed to satisfy Strickland’s prejudice prong by showing that there is

a reasonable probability that he would not have pled guilty but for counsel’s

allegedly deficient advice.

Petitioner’s claims of ineffective assistance of appellate counsel

likewise fail. Appellate counsel was not ineffective for filing an Anders brief

on direct appeal in light of Petitioner’s guilty plea and factual admissions.

Petitioner is unable to demonstrate prejudice because he filed a pro se brief

arguing that there was no factual basis to support the plea and that the

Government incorrectly calculated the drug quantity attributable to him that

subjected him to a ten-year minimum mandatory sentence. The Fourth

Circuit affirmed, concluding that Petitioner’s guilty plea was knowing and

voluntary and that Petitioner’s plea was supported by a sufficient factual

basis. United States v. Brown, 755 F. App’x 251 (4th Cir. 2019). Petitioner

fails to explain what arguments appellate counsel could have made that had

a reasonable probability of succeeding on direct appeal. Nor has Petitioner

presented any reason to re-litigate the issues that the Fourth Circuit resolved

on direct appeal. See United States v. Dyess, 730 F.3d 354, 360 (4th Cir.

2013) (it is well settled that a criminal defendant cannot “circumvent a proper

ruling ... on direct appeal by re-raising the same challenge in a § 2255 motion

(quoting United States v. Linder, 552 F.3d 391, 396 (4th Cir. 2009)); see also

United States v. Roane, 378 F.3d 382, 396 n. 7 (4th Cir. 2004) (noting that,

absent “any change in the law,” defendants “cannot relitigate” previously

decided issues in a § 2255 motion); Boeckenhaupt v. United States, 537

F.2d 1182, 1183 (4th Cir. 1976) (holding criminal defendant cannot “recast,

under the guise of collateral attack, questions fully considered by this court

[on direct appeal]”).

C. Prosecutorial Misconduct

In reviewing a claim of prosecutorial misconduct, the court “review[s]

the claim to determine whether the conduct so infected the trial with

unfairness as to make the resulting conviction a denial of due process.”

United States v. Scheetz, 293 F.3d 175, 185 (4th Cir. 2002).

Petitioner contends that the prosecutor engaged in misconduct by

misrepresenting the amount of cocaine base involved in the March 26, 2015

intercept. Petitioner’s claims about the lack of evidence and incorrect

calculations of drug quantities, however, are belied by his own sworn

admissions that the facts contained in the Plea Agreement and Factual Basis

are accurate and correct. His present unsupported and self-serving

contentions are rejected. Blackledge, 431 U.S. at 74, 97 S.Ct. at 1629.

D. Plain Error

Petitioner argues that the Court erred by accepting a Factual Basis that

included incorrect drug quantities, and by making a mathematical error in

arriving at the drug quantities upon which the ten-year minimum mandatory

sentence was based.

Under 21 U.S.C. §§ 841(a) and 846, the sentences for participants in

drug conspiracies are set forth in § 841(b), which “creates a three-part

graduated penalty scheme for drug distribution offenses, premised on the

type and quantity of the drugs involved.” United States v. Brooks, 524 F.3d

549, 557 (4th Cir. 2008). The “specific threshold drug quantities must be

treated as elements of aggravated drug trafficking offenses, rather than as

mere sentencing factors.” Id. (quoting United States v. Promise, 255 F.3d

150, 156 (4th Cir. 2001) (en banc)). For the statutory minimums of § 841(b)

to apply, the particular threshold drug amount must either be “admitted by

the defendant or proved to a jury beyond a reasonable doubt” to be

reasonably foreseeable to the defendant. Id. at 558 (quoting United States

v. Booker, 543 U.S. 220, 244 (2005)).

Petitioner’s plain error argument is conclusively refuted by the record.

In pleading guilty, Petitioner admitted his guilty of the offense set forth in

Count One, which charged a conspiracy involving 280 grams or more of

crack cocaine. [CR Doc. 3 at 2]. He further admitted that the amount of

crack cocaine that was “known to or reasonably foreseeable” to him was

311.5 grams. [CR Doc. 379 at 2]. These admissions satisfied the elements

of 21 U.S.C. § 841(b)(1)(A) and required the imposition of a ten-year

minimum mandatory sentence. The Court did not err by accepting a Factual

Basis that Petitioner admitted under oath was true, or by accepting the PSR

that incorporated those admitted facts (to which Petitioner did not object).

Thus, the Court did not err in sentencing Petitioner to a ten-year minimum

mandatory sentence based on a drug amount that Petitioner admitted was

reasonably foreseeable to him. Petitioner’s present self-serving and

unsupported contentions that the amounts contained in the Factual Basis

and PSR are inaccurate or unsupported are refuted by his own sworn

statements and are therefore rejected. Blackledge, 431 U.S. at 74.

IV. CONCLUSION

For the foregoing reasons, Petitioner’s § 2255 Motion to Vacate is

denied and dismissed.

Pursuant to Rule 11(a) of the Rules Governing Section 2254 and

Section 2255 Cases, this Court declines to issue a certificate of appealability.

See 28 U.S.C. § 2253(c)(2); Miller-El v. Cockrell, 537 U.S. 322, 338, 123

S.Ct. 1029, 1040 (2003) (in order to satisfy § 2253(c), a petitioner must

demonstrate that reasonable jurists would find the district court's

assessment of the constitutional claims debatable or wrong); Slack _v.

McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 1604 (2000) (when relief is

denied on procedural grounds, a petitioner must establish both that the

dispositive procedural ruling is debatable and that the petition states a

debatable claim of the denial of a constitutional right).

ORDER

IT IS, THEREFORE, ORDERED that Petitioner's § 2255 Motion to

Vacate [Doc. 1] is DENIED and DISMISSED WITH PREJUDICE.

IT IS FURTHER ORDERED that pursuant to Rule 11(a) of the Rules

Governing Section 2254 and Section 2255 Cases, this Court declines to

issue a certificate of appealability.

IT IS SO ORDERED.

Signed: January 20, 2020

a Reidinger ie ae

United States District Judge gs

20