Hill v. United States

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NORTH CAROLINA

CHARLOTTE DIVISION

3:20-cv-10-FDW

(3:15-cr-179-FDW-DCK-2)

JACOB IVAN HILL, )

)

Petitioner, )

)

vs. ) 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. No. 1).

I. BACKGROUND1

Petitioner and his co-defendant, Carlos Benson, were charged with: Count (1), Hobbs Act

robbery (18 U.S.C. §§ 1951, 2); Count (2), kidnapping conspiracy (18 U.S.C. § 1201(c)); Count

(3), kidnapping (18 U.S.C. §§ 1201(a)(1), 2); Count (4), carjacking (18 U.S.C. §§ 2119(3), 2);

Count (5), conspiracy to possess with intent to distribute cocaine (21 U.S.C. § 846); Count (6),

possession with intent to distribute cocaine (21 U.S.C. § 841(a)(1); 18 U.S.C. § 2); Count (7), use,

carry, and possession of a firearm during and in relation to a crime of violence or drug trafficking

crime, i.e., Counts (1) through (6) (18 U.S.C. §§ 924(c), 2); and Count (8), causing death in the

course of using, carrying, and possessing a firearm during and in relation to a crime of violence or

drug trafficking crime, i.e., Counts (1) through (6) (18 U.S.C. §§ 924(j) and 2); and Count (10),

1 This section is not exhaustive. Additional information is included in the Discussion section as relevant to the various

claims.

possession of a firearm by a convicted felon (18 U.S.C. § 922(g)(1)). (3:15-cr-179 (CR), Doc. No.

1).

At trial, the Government presented evidence that Benson and Petitioner lured Quinton

Patterson into a sham drug deal that ultimately led to the death of Darrell Hames:

On November 12, 2014, Hill arranged to buy two grams of cocaine from

Patterson. When Patterson arrived to meet Hill, he parked his Impala and got into

the passenger’s seat of Hill’s Escalade. He put the cocaine on the center console,

but Hill told Patterson that he “want[ed] it all.” At that point, Benson jumped up

from the back seat, where he had been hiding, and put a gun to the back of

Patterson’s head.

Hill ordered Patterson to reveal the name of his dealer. When Patterson

hesitated, Hill pulled out his gun and pointed it at Patterson, saying he was “not

playing.” Patterson relented, and Hill used Patterson’s phone to call the dealer,

Darrell Hames, ostensibly to buy three ounces of cocaine. Hames, believing he was

talking to Patterson, said to meet at the spot where they normally did their

transactions.

Once he hung up, Hill asked, “Where’s the spot? Where’s the spot?”

Patterson didn’t answer and was forced out of the car. Hill warned that he was

“going to shoot” Patterson if he “tr[ied] anything.” Patterson returned to his Impala

and Benson got in the front passenger’s seat, still pointing his gun at Patterson.

Patterson drove to the spot and Hill followed behind in his Escalade.

When they arrived, Hill parked a short distance away and walked to a line

of trees out of sight. Benson hid in the back seat of the Impala, still pointing his gun

at Patterson.

Hames arrived a few minutes later. He got into the passenger seat of

Patterson’s Impala and placed a bag of cocaine on the center console. At that point,

Benson sat up and pointed his gun at Hames, saying “Don’t you fuck—don’t you

flinch.” Benson also said he “ain’t playing.” Hames (who was also armed) turned

around and reached for his gun. Benson then shot Hames six times, and Hames shot

Benson three times. Patterson got out of the car and fled.

Benson and Hill were later apprehended by the police. When emergency

personnel arrived at the scene, they were unable to revive Hames and pronounced

him dead.

United States v. Benson, 756 F. App’x 258, 260 (4th Cir. 2018) (citations omitted).

The jury found Petitioner guilty of all the counts and made special findings:

As to Count Three … did death result from the commission of this offense: YES

…

As to Count Four … did death result from the commission of this offense: YES

…

As to Count Seven …

Was the firearm possessed in furtherance of:

Drug Trafficking Crime? YES

Robbery: YES

Kidnapping? YES

Carjacking? YES

Was the firearm used or carried during or in relation to:

Drug Trafficking Crime? YES

Robbery: YES

Kidnapping? YES

Carjacking? YES

Was the firearm brandished? YES

Was the firearm discharged? NO

(CR Doc. No. 92 at 2).

The Court sentenced Petitioner to concurrent terms of life in prison for Counts (2), (3), (4),

(8), and (10); 240 months’ imprisonment for Counts (1), (5), and (6), concurrent; and 84 months

for Count (7), consecutive, for a total of life plus 84 months’ imprisonment. (CR Doc. No. 125).

On direct appeal, Petitioner argued: there was insufficient evidence of intent to support the

carjacking conviction; the Court erred by failing to declare a mistrial where the jury was exposed

to a prejudicial photograph that was never properly admitted; the Court erred by imposing

sentences beyond the statutory maximum for the felon-in-possession charge; and the firearm

convictions under §§ 924(c) and 924(j) violate the double jeopardy. The Fourth Circuit affirmed.

It found that there was sufficient evidence of intent to support the carjacking conviction; the Court

did not abuse its discretion in denying the motion for a mistrial; the imposition of a life sentence

for the § 922(g)(1) violation was plain error but that Petitioner was not entitled to relief because

he was properly sentenced to life in prison on other counts; and no double jeopardy violation

resulted from the convictions for violating §§ 924(c) and 924(j) convictions because the

convictions addressed separate underlying conduct. Benson, 756 F. App’x at 258.

Petitioner filed the instant § 2255 Motion to Vacate on December 18, 2019.2 He raises

numerous claims of ineffective assistance of trial and appellate counsel. He asks the Court to

vacate the Judgment and grant him a new trial.

The Government filed a Response, (Doc. No. 4), arguing that the Motion to Vacate should

be dismissed and denied because Petitioner seeks to relitigate some of the claims he raised on

direct appeal under the guise of ineffective assistance of counsel; he seeks to revisit some of the

Court’s evidentiary rulings; the record establishes that trial and appellate counsels’ performance

was within the wide range of reasonable assistance; and Petitioner cannot establish prejudice in

light of the overwhelming evidence of his guilt and properly-imposed life sentence.

In his Reply, (Doc. No. 8), Petitioner argues that the Government mischaracterized and

failed to respond to some of his arguments; he asserts that his claims are meritorious. He further

asserts that he would have pleaded guilty had he known that he was facing a mandatory life

sentence. (Doc. No. 8 at 12).

Petitioner also filed a pro se Letter, (Doc. No. 6) seeking the Court’s recusal in these §

2255 proceedings. The Court construed the Letter as a Motion to Recuse and denied the Motion

because Petitioner failed to satisfy 28 U.S.C. § 144. (Doc. No. 7). Petitioner has now filed a

“Reply” (Doc. No. 9) in which he appears to seek relief pursuant to 28 U.S.C. § 455. Under § 455,

a justice, judge, or magistrate judge must disqualify himself in any proceeding in which his

2 Houston v. Lack, 487 U.S. 266, 276 (1988) (establishing the prison mailbox rule); Rule 3(d), Rules Governing §

2255 Proceedings in the United States District Courts (addressing inmate filings).

impartiality might be reasonably questioned. No such circumstances are present in the instant case

so, to the extent that Petitioner seeks the Court’s disqualification pursuant to § 455, such relief is

denied.

II. SECTION 2255 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. In many cases, an evidentiary hearing is required to determine whether or not

counsel was ineffective for misadvising a petitioner about a plea offer. See generally United States

v. Witherspoon, 231 F.3d 923, 926–27 (4th Cir. 2000); 28 U.S.C.A. § 2255(b). 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).

III. DISCUSSION3

(1) Claims of Ineffective Assistance of Trial Counsel

Petitioner contends that trial counsel was ineffective for: (A) failing to correctly inform

Petitioner about his sentencing exposure; (B) failing to adequately argue that self-defense applies

3 Petitioner’s claims have been restated and renumbered. Any arguments or sub-claims not specifically addressed in

this Order have been considered and rejected.

to § 924(c) offenses; (C) failing to have all jurors polled about their exposure to an unadmitted

photograph and failing to insist that Juror Six be replaced with an alternate; (D) misadvising

Petitioner that he would spend life in prison if he testified at trial; (E) failing to object to improper

closing arguments that amounted to prosecutorial misconduct; (F) at sentencing, failing to object

to a sentence beyond the statutory maximum and to a double jeopardy violation; and (G) failing to

file a motion for new trial at Petitioner’s request.

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).

(A) Plea Negotiations

Petitioner argues that counsel was ineffective for failing to inform Petitioner that he was

facing a mandatory life sentence, which hindered Petitioner’s ability to intelligently decide

whether to plead guilty. He further contends that counsel falsely stated at the sentencing hearing

that Petitioner had been correctly advised of his sentencing exposure. Petitioner states in his Reply

that he “obviously would have taken a plea had [he] known that [he] was facing a mandatory life

sentence.” (Doc. No. 8 at 12).

The Sixth Amendment 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). As a general rule, defense counsel has the duty to

communicate formal offers from the prosecution to accept a plea on terms and conditions that may

be favorable to the accused. Frye, 566 U.S. at 145. To show prejudice from ineffective assistance

of counsel where a plea offer has lapsed or been rejected because of counsel’s deficient

performance, defendants must demonstrate a reasonable probability they would have accepted the

earlier plea offer had they been afforded effective assistance of counsel, as well as a reasonable

probability the plea would have been entered without the prosecution canceling it or the trial court

refusing to accept it. Id. at 147. It is necessary to show a reasonable probability that the end result

of the criminal process would have been more favorable by reason of a plea to a lesser charge or a

sentence of less prison time. Id.

At the sentencing hearing, both of Petitioner’s lawyers stated that they had told Petitioner,

at all times, that he was facing a mandatory life sentence. (CR Doc. No. 172 at 27-28). The

following discussion then transpired regarding Petitioner’s knowledge of his sentencing exposure

prior to trial and the parties’ plea discussions:

THE COURT: … Mr. Hill, did you understand that if you were convicted of

certain counts with certain specific findings of facts by the jury that you could

have been facing, as you are today, mandatory life?

THE DEFENDANT: I knew that life was a possibility.

THE COURT: Okay.

THE DEFENDANT: Mandatory life, I don’t remember.

THE COURT: All right. But you knew – you knew conviction of some or more –

of some or more of the counts plus these specific enhancements by the jury could

result in life imprisonment?

THE DEFENDANT: Yes.

THE COURT: And you consciously made the decision to go forward with the

trial. You made that decision?

THE DEFENDANT: Yes, I knew that was a possibility.

MR. CULLER: Well, may I add one thing, Your Honor, which is important for the

Court to know? There was not a plea offer made to the defendant other than

plead to life. And – and obviously for the obvious reasons you’re stating. And so

it was a no-brainer to go to trial, basically. It was why not? If you know what I’m

saying.

THE COURT: Right. Of course.

MR. CULLER: If you don’t have a plea offer, there’s nothing to gain.

THE COURT: If the worse you can do is –

MR. CULLER: The worse.

THE COURT: You knew the 924(c) was going to be a consecutive sentence if

convicted of that. And you knew that.

MR. CULLER: Yes, sir.

THE COURT: And you knew that the other counts were life, and the best deal

you’re going to get was life, then you’re right. What’s – why – what’s the

difference? Go to trial and see if you can convince – the Government can still prove

its case by sufficient evidence.

MR. CULLER: Yes, sir.

THE COURT: And prudent advice, I think a logical, reasonable conclusion by the

defendant to go forward with trial.

MR. CULLER: Yes, sir. I want the Court to be aware of that.

THE COURT: Right.

MR. CULLER: Because obviously if he had been offered a plea for 10 years or 20

years and we had said no, you need to go to trial and has not told him it’s mandatory

life, that would be a whole different ballgame. I just want to make sure that was not

the situation in this case. If the Government has any objection to what I’ve

represented, please state so now.

MR. BHASKER: All I’ll say on the record, Your Honor, I’m not going to go into

plea negotiations, but there was discussion of this defendant testifying against

Mr. Benson. He chose not to do that. Therefore, we didn’t entertain any

further plea negotiations….

(CR Doc. No. 172 at 28-30) (emphasis added).

Petitioner’s present self-serving contentions that counsel never told him that he faced a

mandatory life sentence at trial fails to overcome his own statements and defense counsel’s

statements to the contrary in open court. See generally 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., United States v.

Lemaster, 403 F.3d 216, 221–22 (4th Cir. 2005) (§ 2255 petitioner’s sworn statements during the

plea colloquy conclusively established that his plea agreement and waiver were knowing and

voluntary).

Even if counsel had failed to inform Petitioner of his mandatory life sentencing exposure,

Petitioner has failed to demonstrate prejudice. The record reflects that the Government only plea

offer was to life imprisonment and, because Petitioner was unwilling to testify against his co-

defendant, the parties did not engage in further discussions. Further, Petitioner has not come

forward with any evidence that a more favorable plea offer was forthcoming from the prosecution

or would have been acceptable to the Court. See generally Frye, 566 U.S. at 147; United States v.

Dyess, 730 F.3d 354 (4th Cir. 2013) (vague and conclusory allegations contained in a § 2255

petition may be disposed of without further investigation by the district court). Petitioner’s claim

that counsel’s alleged misadvice deprived him of a more favorable outcome will, therefore, be

denied.

(B) Self-Defense

Petitioner argues that counsel failed to adequately argue the legal availability of self-

defense to a § 924(c) charge, which resulted in the Court granting the Government’s motion in

limine and precluded a self-defense theory at trial.

Generally, a criminal defendant is entitled to an instruction as to any defense so long as the

instruction has an evidentiary foundation and accurately states the law. See Mathews v. United

States, 485 U.S. 58, 63 (1988); United States v. Ricks, 882 F.2d 885, 893 (4th Cir. 1989). The

Fourth Circuit has unequivocally held, as a matter of law, that “self-defense is irrelevant to a

section 924(c) violation.” United States v. Sloley, 19 F.3d 149, 153 (4th Cir. 1994) (quotations

omitted).

The Government filed a pretrial motion arguing that the Court should preclude any

argument or statement of self-defense about any of the main charges because self-defense is

inapplicable to a § 924(c) violation and to felony murder, kidnapping, robbery and kidnapping.

(CR Doc. No. 48). It argued that the only charge for which a justification defense was theoretically

available is the § 922(g) offense charged in Count (10), and that Petitioner should be required to

demonstrate its applicability to the Court before presenting such a theory to the jury. (Id.). Defense

counsel agreed at the pretrial hearing that self-defense does not apply to § 924(c) offenses, but

argued that the defense should applies to the § 922(g) charge, and that there is no underlying crime

of violence to support the § 924(c) charge. See (CR Doc. No. 162 at 2-7). The Government argued

that self-defense would become irrelevant with regards to the § 924(c) charge should the jury find

no crime of violence or drug trafficking crime. (CR Doc. No. 162 at 8-9). The Court granted the

motion in limine with regards to the § 924(c) charge, reserved ruling on the § 922(g) charge subject

to the defense’s presentation of evidence of a justification defense to the Court before presenting

it to the jury, and granted the motion with regards to the other counts subject to reconsideration

should facts unfold at trial suggesting that self-defense would be legally appropriate. (CR Doc.

No. 162 at 9).

Counsel did not perform deficiently by conceding that self-defense does not legally apply

to a § 924(c) violation pursuant to binding Fourth Circuit precedent. Sloley, 19 F.3d at 153. Nor

has Petitioner come forward with any evidence that would have supported a justification defense

for the § 922(g) charge or for any of the other charges. Counsel cannot be deemed ineffective for

failing to present evidence or obtain an instruction on a legally inapplicable self-defense theory

and this claim will be denied.

(C) Unadmitted Photograph

Petitioner contends that counsel was ineffective for failing to insist that Juror Six be

replaced with an alternate after the jury panel was inadvertently shown an unadmitted photograph

of the decedent, which caused that juror to become emotionally upset. Petitioner further argues

that counsel was ineffective for failing to have the rest of the jurors polled about the unadmitted

photograph.

The Sixth Amendment guarantees a criminal defendant the right to a trial “by an impartial

jury.” U.S. CONST. Amend. VI. That right is compromised when the trier of fact is unable to

render a disinterested, objective judgment. See United States v. Thompson, 744 F.2d 1065, 1068

(4th Cir. 1984). When a serious, non-speculative question of juror impartiality arises during trial,

the district court must determine whether the affected jurors remain fair and impartial. Id.; Neal v.

United States, 22 F.2d 52, 53 (4th Cir. 1927). A trial judge is authorized to impanel alternate jurors

and substitute them for jurors who can no longer serve. Fed. R. Cr. P. 24(c).

During trial, a photograph of the deceased victim was inadvertently flashed on the

courtroom display screens for, at most, two seconds. (CR Doc. No. 165 at 54-55). Petitioner’s

counsel moved for a mistrial due to the photograph’s prejudicial nature. (CR Doc. No. 165 at 56).

The Court denied the motion for mistrial because the photograph was not unduly prejudicial and

could have been admitted at trial. (CR Doc. No. 165 at 64). The Court then instructed the jury to

disregard the photograph as follows:

THE COURT: So, ladies and gentlemen, for an instant an exhibit, photograph

exhibit was displayed on your screens and on the screen above you and was then

removed because it had not been admitted.

Did any of you see that?

THE JURY: Yes.

THE COURT: Raise your hand. So most of you did see it. Okay. So that has not

been admitted. Please do not consider it in any manner, shape, or form.

Also, to the extent you think it’s an emotional exhibit, please don’t – just

consider the fact that this is supposed to be an impartial and fair forum so the

defendants have an honest verdict, a verdict based on admissible evidence and not

emotional evidence. So please disregard that photograph. Particularly, if it in any

way emotionally affects you, but it is not evidence at this time. I can always say it

might become evidence, but it is not evidence now, disregard it in its entirety.

All of you can do that? Please affirmatively nod your heads. And I see

every one nodding your head affirmatively. That you very much….

(CR Doc. No. 165 at 66-67) (emphasis added).

Approximately two hours later, Juror 6 submitted a note informing the Court as follows:

I am having trouble focusing on the case since the accidental unexpected

photo of a gunshot to the head. The reason is my son’s best fried at the age of 16

committed suicide by a gunshot to the head…. I was emotionally disturbed and

continue to be. I do not feel this will affect my ability to rule this case fairly. My

concern is that I may miss important key facts by being disturbed and unable to –

[illegible]. I wanted to disclose this to be fair. I’m sorry….

(CR Doc. No. 165 at 167).

The Court called Juror 6 to the courtroom and questioned her about the incident. The juror

stated that she was shocked and “a little distracted” after the photograph was flashed, but that she

“just kind of needed a break” and could be fair. (CR Doc. No. 165 at 171). Following the colloquy,

all parties indicated that they did not want to replace Juror 6 because there was only one alternate

and replacing Juror 6 may risk a mistrial. (CR Doc. No. 169 at 6-7). The Court agreed that the

juror’s replacement was not necessary and declined to replace her in accordance with the parties’

wishes.

Counsel’s decision not to seek the replacement of a juror who remained fair and impartial

was a reasonable strategic decision. Reasonable counsel could have determined, under these

circumstances, that replacing Juror 6 with an alternate would unnecessarily risk a mistrial. Nor has

Petitioner demonstrated prejudice. Petitioner contends that the incident caused Juror 6 to entirely

miss two hours of trial and rendered her incompetent. The record reveals, however, that Juror 6

experienced only “a little” distraction for the two hours following the incident and could remain

fair.

Nor was counsel ineffective for failing to ask the Court to poll the other jurors to see if they

were similarly affected by the unadmitted photograph. The Court instructed the jury to disregard

the unadmitted photograph entirely and all of the jurors indicated they could do so. The jurors are

presumed to have understood and followed the Court’s instruction. United States v. Zelaya, 908

F.3d 920, 930 (4th Cir. 2018). Reasonable counsel could have determined that further questioning

the jurors about the incident would have called unnecessary attention to the matter. Further,

Petitioner has failed to demonstrate how the jury’s brief exposure to an unadmitted photograph

that was very similar to an admitted photograph and which the jury was instructed to disregard,

prejudiced him in any way.

Petitioner has failed to demonstrate that counsel was ineffective with for failing to request

that Juror 6 be replaced or that the entire panel be polled and, accordingly, this claim will be denied.

(D) Right to Testify

Petitioner contends that counsel misadvised him that he would spend life in prison if he

testified at trial, which scared him into waiving his right to testify and he received a life sentence

anyway.

A criminal defendant has a fundamental constitutional right to testify on his own behalf at

trial. Rock v. Arkansas, 483 U.S. 44, 52–53 (1987); United States v. Midgett, 342 F.3d 321, 325

(4th Cir. 2003). A defendant’s waiver of this right, like that of any other constitutional right, is

“personal” and must be made voluntarily and knowingly. Sexton v. French, 163 F.3d 874, 881

(4th Cir. 1998); Brown v. Artuz, 124 F.3d 73, 77-78 (2d Cir.1997).

The Court instructed Petitioner as follows with regard to his right to testify at trial:

THE COURT: … Mr. Benson and Mr. Hill, we’re now to the phase of the trial

where you and your attorneys have the opportunity to present evidence.

As part of the evidence of production process, you have the opportunity

to testify if you’d like. However, you also have a fundamental right under our

Constitution, our Bill of Rights, to remain silent if you do not want to testify. And

if you choose to remain silent and not testify, I will advise the jurors that they cannot

hold it against you in any way that you choose to remain silent.

Now, in exercising your Fifth Amendment right, that’s what it’s called,

Fifth Amendment right to remain silent – while you can remain silent and it will

not be used against you, you are foregoing your opportunity to tell your side of the

story because that’s what you would do on the witness stand. You would tell your

side and allow your attorneys to argue your side in closing, and you have the choice

to make whether you’re going to testify or not.

But let me advise you that if you do choose to testify and tell your side of

the story, the Government can do something which it could not otherwise do if you

remain silent. It can – one, it can cross-examine you as to your presentation of your

side of the story. And it can also impeach you with regard to certain things you

might have done in the past. There’s some limitations on drilling into your criminal

history because of the stipulation….

(CR Doc. No. 167 at 113-14) (emphasis added).

After discussing the matter with counsel during a break, Petitioner stated his decision not

to testify:

THE COURT: … Mr. Hill, during the lunch break, did you have an opportunity to

talk to your attorneys about this issue of whether you remain silent or testify?

DEFENDANT HILL: Yes, sir.

THE COURT: And did they provide to you their advice on this issue?

DEFENDANT HILL: Yes, sir.

THE COURT: And did you serious consider their advice?

DEFENDANT HILL: Yes, sir.

THE COURT: Now, do you have any questions regarding this issue as I

explained it to you before the lunch hour?

DEFENDANT HILL: No, sir.

THE COURT: You understand it?

DEFENDANT HILL: Yes.

THE COURT: Now I ask you what is your decision, to testify or remain silent?

DEFENDANT HILL; At the moment I’m still considering.

MR. CULLER: I’m going to tell you to remain silent at this time. You may choose

to testify, depending. You can say it that way.

DEFENDANT HILL: I choose to remain silent for the moment.

THE COURT: Right.

DEFENDANT HILL: But I may still –

THE COURT: But you may change your mind?

DEFENDANT HILL: Yes.

THE COURT: At this point in time you’re choosing to remain silent, and you can

certainly change your mind all the way up until you’re called – the time you’re

called to testify if you choose to testify. This decision is your personal decision

with advice of counsel, but it is your special position, correct?

DEFENDANT HILL: Yes, sir.

(CR Doc. No. 167 at 118-20) (emphasis added).

At the sentencing hearing, Petitioner again stated that he chose not to testify at trial and

explained the reasoning behind that decision as follows:

DEFENDANT HILL: … I pretty much thought that the evidence when it came

out was going to speak for itself. So I chose not to testify, and I guess the reason

I say that is because I heard you comment a lot about the evidence being

overwhelming, and my lawyers, they cost me again. Sorry they cost me concerning

things because they got more experience than me and know how these things go.

…

I didn’t speak at the trial because, like I said, I didn’t really want to get

caught up in the whole – no disrespect, but circus of this.

…

But I kept hearing you, the facts, the evidence. I don’t know what evidence

you seen that we didn’t see that’s so overwhelming and that backs the story that

Quinton said on the stand and, you know, whenever he get caught in a lie, I can’t

remember, I can’t remember. I don’t know what part of that was so full of this

evidence, and I don’t mean to be disrespectful, but I sat through the trial and I didn’t

say nothing. I chose not to testify.

(CR Doc. No. 172 at 54, 58, 60-61) (emphasis added).

The record reveals that Petitioner understood his right to testify, discussed it with counsel,

and personally decided to waive that right. His present self-serving and unsupported contention

that he made that decision based on counsel’s threat that it would result in life imprisonment is

rejected. See Blackledge, 431 U.S. at 74; see, e.g., Lemaster, 403 F.3d at 221–22.

(E) Prosecutorial Misconduct

Petitioner contends that counsel was ineffective for failing to object to statements during

closing argument that amounted to prosecutorial misconduct which deprived him of a fair trial.

The test for prosecutorial misconduct in the context of closing argument is “whether the

prosecutor’s comments ‘so infected the trial with unfairness as to make the resulting conviction a

denial of due process.’” Darden v. Wainwright, 477 U.S. 168, 181 (1986) (quoting Donnelly v.

DeChristoforo, 416 U.S. 637, 643 (1974)). Specifically, the defendant alleging prosecutorial

misconduct must show: “(1) the prosecutor’s remarks or conduct were improper and (2) that such

remarks or conduct prejudicially affected his substantial rights so as to deprive him of a fair trial.”

United States v. Caro, 597 F.3d 608, 624 (4th Cir. 2010).

Petitioner argues that the prosecution made improper closing arguments that disparaged

the defense, misrepresented the evidence, vouched for prosecution witnesses, conveyed the

prosecutor’s personal feelings, and shifted the burden of proof. For instance, Petitioner complains

that the prosecutor repeatedly urged the jury to reject the “Cookie Monster” and “revenge fantasy”

defenses, argued that Patterson’s and Miller’s testimony was credible and that Benson’s testimony

was incredible, and argued that the evidence revealed a drug robbery. Read in context, these

comments were a fair response to the evidence presented at trial, the defense theory of the case,

and defense counsel’s closing arguments. Any variations between the evidence presented at trial

and the prosecutors’ arguments were minor and non-prejudicial. Rather than conveying the

prosecutors’ personal beliefs, vouching for the Government witnesses, or shifting the burden of

proof, the prosecutors’ arguments urged the jury to find the Government witnesses credible, reject

the defense theory, and return guilty verdicts. Further, to the extent that any of these comments

exceeded the bounds of propriety, they were harmless because the comments were brief, there was

ample evidence to support Petitioner’s conviction, and the defense theory was implausible. See

United States v. Scheetz, 293 F.3d 175, 186 (4th Cir. 2002) (“Most importantly, absent the

prosecutor’s improper remark, the government’s case against [the defendant] was

overwhelming.”); United States v. Craddock, 364 F. App’x 842 (4th Cir. 2010) (prosecutor’s

comments that witnesses “told the truth” was improper vouching but did not affect defendant’s

substantial rights so as to require reversal; the comments were isolated, brief, not deliberately

placed before the jury to divert their attention to extraneous matters, merely reflected a poor choice

of phrasing, and there was ample evidence to support defendant’s conviction); United States v.

Mason, 344 F. App’x 851 (4th Cir. 2009) (comments vouching for witnesses and referring to facts

not in evidence was not plain error given the strength of the government’s case and the fact that

those witnesses were mostly redundant, and jury was instructed to rely on its recollection of the

evidence); United States v. Lawson, 64 F. App’x 380 (4th Cir. 2003) (assuming that the prosecutor

made vouching remarks, they were not plain error given their isolated nature and the overall

strength of the government’s case). Further, these comments occurred during closing arguments

and the Court provided instructions, that the jury is presumed to have followed, that counsel’s

arguments are not evidence and that the burden of proof rests on the Government. See (CR Doc.

No. 164 at 13-15) (preliminary instructions); (CR Doc. No. 170 at 88) (concluding instructions);

see Jones v. United States, 527 U.S. 373, 394 (1999) (jurors are presumed to follow the jury

instructions).

Petitioner’s claim that counsel was ineffective for failing to object to the allegedly improper

closing arguments is refuted by the record insofar as counsel did raise several objections during

the prosecution’s closing arguments. See (CR Doc. No. 169 at 210); (CR Doc. No. 170 at 51, 62).

Reasonable counsel could have concluded that additional or different objections would have been

fruitless. Further, Petitioner has failed to demonstrate a reasonable probability that a different

outcome would have resulted had counsel made additional objections in light of the strong

evidence of Petitioner’s guilt and the implausibility of the defense theory.

Therefore, Petitioner’s claims that counsel was ineffective with regards to prosecutorial

misconduct that allegedly occurred during closing arguments will be denied.

(F) Sentencing

Petitioner contends that counsel was ineffective for failing to object when the Court

imposed a life sentence for the § 922(g) offense that exceeded the statutory maximum, and for

failing to object that the convictions and sentences for violations of §§ 924(c) and (j) violated

double jeopardy. In his Reply, Petitioner concedes that he “ha[s] no choice but to admit that the

Government was correct in its assessment that d[ue] to other counts, there was no real relief to be

gained from the resulting prejudice.” (Doc. No. 8 at 20). These claims will accordingly be denied.4

(G) Motion for New Trial

Petitioner contends that counsel was ineffective for failing to file a Rule 33 motion for new

trial pursuant to his request, that counsel told Petitioner that the motion had been struck down, and

that Petitioner later learned that no motion had been filed. In his Reply, Petitioner admits that he

did not know the issue that was supposed to be raised in the motion for new trial. (Doc. No. 8 at

20).

This claim is facially insufficient to support relief. Petitioner has failed to set forth the

claims that reasonable counsel would have raised or explain why they had a reasonable probability

of changing the outcome of the proceeding.5 This claim will, therefore, be denied.

(2) Claims of Ineffective Assistance of Appellate Counsel

Petitioner contends that appellate counsel was ineffective for failing to raise the following

issues on direct appeal (renumbered): (A) the Court’s ruling that self-defense was inapplicable;

(B) prosecutorial misconduct; (C) denial of judgment of acquittal on carjacking; (D) the Court’s

bias against the defense; (E) the fundamentally inconsistent verdict; and (F) cumulative errors

deprived Petitioner of a fair trial.

The right to the effective assistance of counsel extends to 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

4 Had these claims not been withdrawn, they would have been denied for the reasons set forth in the Government’s

Response. (Doc. No. 4 at 30-31).

5 The Government correctly notes that the claim mentioned in counsel’s motions to extend the time to file a motion

for new trial fails to support an ineffective assistance claim because it was denied on the merits at the sentencing

hearing. See (Doc. No. 4 at 31-32).

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); see also United States v. Mannino, 212

F.3d 835, 845–46 (3d Cir. 2000) (“The test for prejudice under Strickland is not whether petitioners

would likely prevail upon remand, but whether we would have likely reversed and ordered a

remand had the issue been raised on direct appeal.”).

(A) Self-Defense

Petitioner contends that appellate counsel should have argued that the Court abused its

discretion by misapplying Sloley and finding that self-defense is irrelevant to the § 924(c) offense

where no kidnaping, carjacking or robbery conspiracy occurred and Petitioner was merely present

at the scene.

The Court correctly applied Sloley and no error occurred with regards to the availability of

a self-defense theory as set forth in Claim (1)(B), supra. Because “[t]he underlying arguments are

meritless … it could scarcely be ineffective of appellate counsel not to raise them.” Coley v.

Bagley, 706 F.3d 741, 752 (6th Cir. 2013) (“[o]mitting meritless arguments is neither

professionally unreasonable nor prejudicial.”); see Schneider v. United States, 864 F.3d 518 (7th

Cir. 2017) (appellate counsel was not ineffective for failing to raise trial counsel’s alleged

ineffective assistance on direct appeal because the complaints about trial counsel were meritless).

(B) Prosecutorial Misconduct

Petitioner contends that appellate counsel was ineffective for failing to raise the “blatant”

and extensive prosecutorial misconduct that occurred during closing arguments. No prejudicial

prosecutorial misconduct occurred as set forth in Claim (1)(E), supra, and appellate counsel cannot

be deemed for failing to raise this meritless argument on direct appeal. See Coley, 706 F.3d at 752.

(C) Judgment of Acquittal

Petitioner argues that appellate counsel was ineffective for failing to adequately argue that

the Court erred by denying judgment of acquittal on the carjacking charge. Petitioner contends that

counsel argued a “regular § 2119 instead of a § 2119(3)” that requires proof of an additional

element. (Doc. No. 1 at 54). He appears to argue that there is an inadequate nexus between the

taking of Patterson’s vehicle and Hames’ shooting death during the subsequent drug robbery.

To obtain a conviction under § 2119(1), the government must prove that the defendant “(1)

with intent to cause death or serious bodily harm (2) took a motor vehicle (3) that had been

transported, shipped or received in interstate or foreign commerce (4) from the person or presence

of another (5) by force and violence or intimidation.” United States v. Foster, 507 F.3d 233, 246

(4th Cir. 2007) (internal quotation marks omitted). Section 2119(3) requires the additional element

that “death result[ed]” from the defendant’s taking or attempted taking of the vehicle. 18 U.S.C. §

2119(3). To satisfy this element, the government need only prove conditional intent, i.e., that the

defendant was willing to kill or harm the driver if the driver did not comply with the demand to

turn over the car. Holloway v. United States, 526 U.S. 1 (1999). The government does not have to

prove that the death occurred during the actual carjacking. “It’s sufficient if the government proves

the defendant caused the death … at any time during the carjacking or the defendant’s retention of

the vehicle.” United States v. Blake, 571 F.3d 331, 352 (4th Cir. 2009).

Counsel argued on direct appeal that the Court erred by denying their motion for judgment

of acquittal on the carjacking charge because there was insufficient evidence that they were

prepared to kill or seriously injure Patterson, which would have defeated their overall plan to force

Patterson to take them to “the spot” where he was going to meet up with Hames. See Benson, 756

F. App’x at 262. The Fourth Circuit denied this claim because, even if a reasonable juror could

draw the conclusion urged by the defense, “a reasonable juror could also conclude that the

defendants’ threats were all too real” and that “Benson and Hill were prepared to kill or seriously

injure Patterson if necessary.” Id. at 263. The evidence also established that Defendants forced

Patterson to drive his carjacked vehicle to meet Hames while Benson remained in the vehicle and

shot Hames to death during the botched drug rip-off. This evidence was sufficient to support the

jury’s finding, beyond a reasonable doubt, that “death resulted” from actions that occurred while

Defendants retained the carjacked vehicle. (CR Doc. No. 92 at 2) (the verdict form for Count (4),

carjacking, states: “did death result from the commission of this offense: YES”). No additional

nexus or intent showing was required. Appellate counsel cannot be deemed ineffective for failing

to raise this meritless argument. See Coley, 706 F.3d at 752.

(D) Bias

Petitioner contends that counsel was ineffective for failing to argue that the Court should

be disqualified from the case due to prejudice or bias, which deprived him of a fair trial. Petitioner

complains that the Court was biased against Petitioner, having presided over a 2006 criminal case

where the Court “promise[d] to be bias[ed] in the future if he ever saw Mr. Hill again….” (Doc.

No. 1 at 38). Petitioner further claims that the Court displayed had a preconceived notion of

Petitioner’s guilt (i.e., by stating that Defendants tried to rob Hames and by depriving Petitioner

of a self-defense theory); made adverse rulings on pretrial motions and during trial (i.e., by

prohibiting a self-defense theory and failing to excuse Juror 6); agreed with the Government’s

view of the case (i.e. that the case was a drug rip-off and that the shooting of Hames was execution-

style); and by sentencing him beyond the statutory maximum for the § 922(g) count.

A federal judge is required to “disqualify himself in any proceeding in which his

impartiality might reasonably be questioned.” 28 U.S.C. § 455(a). A judge who presides at a trial

is not recusable just because he becomes “exceedingly ill disposed towards the defendant” upon

completion of the evidence because the “knowledge and the opinion it produced were properly

and acquired in the course of the proceedings….” Liteky v. United States, 510 U.S. 540, 551

(1994). A favorable or unfavorable predisposition is characterized as prejudice or bias only if “it

is so extreme as to display clear inability to render fair judgment.” Id. “Also not subject to

deprecatory characterizations of ‘bias’ or ‘prejudice’ are opinions held by judges as a result of

what they learned in earlier proceedings.” Id. It is “normal and proper for a judge to sit in the same

case upon its remand, and to sit in successive trials involving the same defendant.” Id. “[J]udicial

rulings alone almost never constitute a valid basis for a bias or partiality motion.” Id.; Glenn v.

Wells Fargo Bank, N.A., 710 F. App’x 574 (4th Cir. 2017).

First, Petitioner alleges that the Court was biased due to Petitioner’s 2006 criminal case.

The Court presided over case number 3:06-cr-188 in which Petitioner pleaded guilty to a single

count of possession of a firearm by a convicted felon in violation of § 922(g). (3:06-cr-188, Doc.

No. 29). Petitioner contends that the Court threatened Petitioner in the 2006 case that he would be

biased if he ever saw Petitioner again and that the prosecutor urged the Court to “remember” his

threat to Petitioner and to “keep his word.” (Doc. No. 1 at 38). Petitioner has not come forward

with any transcript to support this contention. The records in the 2016 case and the revocation

proceedings in the 2006 case reflect no such conversation. See (3:06-118, Doc. No. 106)

(revocation and sentencing transcript); (CR Doc. No. 172) (sentencing transcript). The mere fact

that the Court presided over a 2006 case then the 2016 case, and may have developed opinions

about what it learned in those proceedings, does not amount to prejudice or bias. See Liteky, 510

U.S. at 551.

Petitioner has come forward with a number of allegedly biased decisions that the Court

made pretrial, during trial, and at sentencing.6 The record reflects nothing more than the parties

and Court discussing various issues and the Court’s rulings on those issues which were sometimes

adverse to Petitioner. The Court has already addressed several of these matters in the preceding

sections, supra, and the bias claim fails for the same reasons. See, e.g., United States v.

Borodyonok, 286 F. App’x 97, 99–100 (4th Cir. 2008) (rejecting disqualification claim on plain

error review because the jury instructions that allegedly demonstrated the court’s impartiality were

correct). To the extent that the Court made rulings adverse to the defense, these rulings fail to

demonstrate prejudice or bias. See Liteky, 510 U.S. at 551; Glenn, 710 F. App’x at 574. To the

extent that the Court expressed its own opinions and conclusions about what the evidence showed

and the appropriateness of various arguments and evidence, such was required for the Court to

preside over the case and make rulings. As the Supreme Court noted in Liteky, “[d]isinteredness

does not mean child-like innocence [and] [i]f the judge did not form judgements of the actors in

6 All of the various examples Petitioner raises will not be addressed individually in the interest of judicial economy.

those court-house dramas called trials, he could never render decisions.” 510 U.S. at 551 (quoting

In re J.P. Linaham, Inc., 138 F.2d 650, 654 (2d Cir. 1943)). Moreover, the Court’s comments could

not have affected the jury so as to have deprived Petitioner of a fair trial to the extent that they

occurred outside the jury’s presence. See, e.g., (CR Doc. No. 166 at 244) (the Court stating side-

bar, in ruling on an objection, that the shooting was “execution-style” and was “to get the dope”).

Petitioner further contends that the Court disparaged the defense and defense counsel,

which demonstrated prejudice or bias. The Court’s rejection of various arguments by defense

counsel and expression of impatience with such do not amount to prejudice and bias and could not

have affected the jury to the extent that these comments occurred outside the jury’s presence. See,

e.g., (CR Doc. No. 166 at 164, 246) (reference to counsel’s disorganization, that counsel objected

was demeaning and reflected that the Court was not impartial, occurred outside the jury’s

presence). A reasonable person to question the Court’s impartiality under these circumstances. See

People Helpers Found., Inc. v. City of Richmond, Va., 12 F.3d 1321, 1325–26 (4th Cir. 1993)

(judge’s comments “while perhaps caustic” did not indicate personal bias where the judge merely

voiced his perceptions concerning the case and the comments, “at worst, show [the judge’s]

disapproval of the actions taken [by the party], but they are not indicative of personal bias” and, in

any event “these comments were not made during the trial on the merits or in the presence of the

jury.”).

Petitioner has failed to establish that appellate counsel performed unreasonably by failing

to present meritless claims of judicial bias on direct appeal. Nor has he shown a reasonable

probability that such a claim would have prevailed had appellate counsel raised it.

(E) Inconsistent Verdict

Petitioner contends that counsel should have argued on direct appeal that the verdict was

fundamentally inconsistent. He argues that the jury’s findings that Petitioner was guilty of Counts

(3), (4) and (8), that death resulted from Counts (3) and (4), but finding in Count (7) that Petitioner

did not discharge a firearm are inconsistent. (CR Doc. No. 92 at 1-2). Petitioner contends that, as

a result of this inconsistency, he was erroneously adjudicated guilty for Counts (3), (4) and (8) and

sentenced with the § 2A1.1 cross-reference.

Inconsistent jury verdicts “do not call into question the validity or legitimacy of the

resulting guilty verdicts.” United States v. Green, 599 F.3d 360, 369 (4th Cir. 2010) (quoting United

States v. Powell, 469 U.S. 57, 64 (1984)); see Dunn v. United States, 284 U.S. 390 (1932) (a jury

verdict of guilty on one count is not rendered void by the same jury’s acquittal on a second count

although the identical evidence logically supported convictions on both counts). A jury may arrive

at an inconsistent verdict “through mistake, compromise, or lenity, and a jury could just as likely

err in acquitting as in convicting.” United States v. Louthian, 756 F.3d 295, 305 (4th Cir. 2014).

Nothing in the Constitution requires a new trial where an inconsistent verdict has been returned.

Powell, 469 U.S. at 65.

Trial counsel argued that the verdict is fundamentally inconsistent because the instructions

on Counts (4) and (8), and the jury’s finding that Petitioner did not discharge a firearm “[a]nd if

they found him not guilty of discharging the firearm, then he could not have aided and abetted in

any of the events that occurred in the car.” (CR Doc. No. 172 at 32). The Court noted that the

objection was preserved for the record and rejected the objection because “an inconsistent verdict

is permissible under the law.” (CR Doc. No. 172 at 32-33). The Court noted at trial, “the jury[] …

decided he wasn’t the shooter, so they didn’t hold him responsible for actual discharging, but they

understood that all of this course of conduct involved all these other offenses, and they found those

other offenses.” (CR Doc. No. 172 at 36).

There was nothing inherently contradictory about the guilty verdicts in Counts (3) and (4)

for kidnapping and carjacking that resulted in death; the guilt verdict in Count (7) to brandishing

or discharging a firearm during and in relation to a crime of violence or drug trafficking crime in

violation of § 924(c); and the guilty verdict in Count (8) to causing death in the course of using,

carrying and possessing a firearm during and in relation to a crime of violence or drug trafficking

crime in violation of § 924(j) with a special finding in Count (8) that Petitioner did not discharge

a firearm. See, e.g., United States v. Toliver, 793 F. App’x 151 (4th Cir. 2010) (jury rationally

could have found that defendant aided and abetted in an assault with a deadly weapon in

furtherance of racketeering without having possessed or aided in the possession of any firearm);

United States v. Blankenship, 707 F.2d 807 (4th Cir. 1983) (verdict finding defendant guilty of

conspiracy to commit bank robbery and possession of stolen bank funds, but not guilty of armed

robbery, assault on bank employees, and possession of firearms in the bank, was not fatally

inconsistent); United States v. Lake, 972 F.Supp. 328 (D.V.I. July 7, 1997) (the jury’s finding of

guilt for carrying a firearm in relation to the commission of a carjacking under § 924(c) was not

inconsistent with its acquittal of defendant of carjacking). Nor does the special finding that

Petitioner did not discharge the firearm in Count (8) undermine the § 924(c) and § 924(j)

convictions in Counts (7) and (8) in any way. See, e.g., United States v. Caraballo, 2014 WL

3535347 (D. Vt. March 6, 2014) (jury findings that defendant violated § 924(c) and § 924(j) in

victim’s shooting death, but that defendant did not discharge the firearm, were not inconsistent),

on reconsid., 2014 WL 3535348, aff’d, 658 F. App’x 595 (2d Cir. 2016).

Appellate counsel cannot be deemed deficient for declining to raise this meritless claim on

direct appeal and, had counsel raised it, there is no reasonable probability that it would have

succeeded.

(F) Cumulative Error

Finally, Petitioner contends that appellate counsel was ineffective for failing to raise

cumulative error on direct appeal. Petitioner argues that the prejudice from the unadmitted

photograph and failure to replace Juror 6, denial of him motion for judgment of acquittal on the

carjacking, prosecutorial misconduct, failure to warn Petitioner of the mandatory life sentence, and

the inconsistent verdict cumulatively deprived him of a fair trial.

Pursuant to the cumulative error doctrine, the cumulative effect of two or more individually

harmless errors has the potential to prejudice a defendant to the same extent as a single reversible

error. United States v. Martinez, 277 F.3d 517, 532 (4th Cir. 2002). When “none of [the] individual

rulings work[ ] any cognizable harm, ... [i]t necessarily follows that the cumulative error doctrine

finds no foothold.” United States v. Sampson, 486 F.3d 13, 51 (2007). In the context of cumulative

error with regards to ineffective assistance of counsel claims, such claims must be reviewed

individually rather than collectively. Fisher v. Angelone, 163 F.3d 835, 852 (4th Cir. 1998).

None of the individual errors that Petitioner has identified are meritorious as discussed in

the preceding sections. Therefore, his claim of cumulative error likewise fails.

In sum, Petitioner has failed to demonstrate that appellate counsel performed ineffectively

by pursuing stronger arguments on appeal than the meritless claims he has identified. See generally

Mason, 774 F.3d at 829 (counsel was not ineffective for failing to present a “long shot” equal

protection argument on appeal and instead presented a stronger Fourth Amendment claim). His

ineffective assistance of appellate counsel claims will therefore be denied.

IV. CONCLUSION

For the foregoing reasons, the Motion to Vacate is denied.

IT IS, THEREFORE, ORDERED that:

1. The Motion to Vacate, Set Aside or Correct Sentence under 28 U.S.C. § 2255, (Doc.

No. 1), is DENIED.

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

(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 (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).

3. The Clerk is instructed to close this case.

Signed: December 11, 2020

Frank D. Whitney □□

United States District Judge ae

29