Brown v. United States

UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF OKLAHOMA

MICHAEL SHANDELON BROWN, )

)

Movant, )

)

v. ) Case No. CIV-18-764-G

)

UNITED STATES OF AMERICA, )

)

Respondent. )

OPINION AND ORDER

Now before the Court is Michael Shandelon Brown’s Motion to Vacate, Set Aside,

or Correct Sentence (Doc. No. 1) under 28 U.S.C. § 2255.1 After careful consideration of

the parties’ arguments, the relevant authorities, and the case record, the Court determines

that no evidentiary hearing is necessary and that the Motion should be denied on the

existing record.2

BACKGROUND

Following a jury trial in April 2016, Mr. Brown (“Defendant”) was convicted of

conspiracy to possess with intent to distribute cocaine base (crack cocaine) and money-

laundering conspiracy. See Jury Verdict (Doc. No. 644) at 9-10. The Court sentenced

Defendant to 10 years’ imprisonment on each count, to be served concurrently. See J.

(Doc. No. 815) at 2. On April 11, 2018, Defendant’s convictions were affirmed by the

1 The United States filed a Response in the associated criminal case. See United States v.

Brown, 15-cr-93-G (Doc. No. 1015).

2 No evidentiary hearing is required where “the motion and the files and records of the case

conclusively show that the prisoner is entitled to no relief.” 28 U.S.C. § 2255(b); see also

United States v. Lopez, 100 F.3d 113, 121 (10th Cir. 1996).

United States Court of Appeals for the Tenth Circuit. See Order & J. (Doc. No. 996). The

Tenth Circuit’s order details the relevant factual and procedural history. See id. at 2-12.

This opinion assumes familiarity with that account and merely summarizes the events

leading up to Defendant’s arrest and the evidence of his guilt.

In 2014, a multi-agency investigation implicated Defendant in an Oklahoma City-

based drug-trafficking conspiracy spearheaded by Daryl Ingram, Defendant’s codefendant

and longtime friend. On November 7, 2014, officers executed a series of search warrants

at residences associated with the conspiracy. Id. at 3. The previous day, Defendant and

Ingram had boarded an airline flight to Los Angeles, California, reportedly—that is,

according to prosecution witnesses—because they had learned of the police investigation

and impending arrests. Id. While in California, Defendant cashed eight $1000 money

orders that had been purchased in Oklahoma by individuals associated with the conspiracy.

Id. at 4. According to prosecution witnesses, the money orders were purchased with drug

proceeds and mailed to California for the benefit of Ingram. Id. at 3-4.

On December 9, 2014, Defendant boarded a return flight to Oklahoma City. Id. at

3. On February 17, 2015, officers acting on an anonymous tip were surveilling a house

owned by suspected drug dealer and known gang member Anthony Anderson. Id. at 7.

The officers observed Defendant and Ingram approach Anderson’s house in a grey Kia and

enter the house. Id. A few minutes later, Defendant and Ingram exited the house with a

black bag and departed in the Kia. Id. at 8. Officers trailed the Kia and, after observing a

traffic violation, signaled Defendant and Ingram to pull over. Id. Defendant and Ingram

sped away and, after a high-speed chase, were apprehended with $4980 in cash and 26

baggies of crack cocaine. Id. at 9. Inside the Kia, officers discovered a number of

incriminating items, including: (1) photos depicting Defendant and Ingram together with

their coconspirators; (2) a parking pass and key fob for a Dallas apartment where officers

later discovered large bundles of cash, a ledger reflecting $110,000 in outstanding drug

debts, and a napkin on which Defendant’s phone number was written; and (3) receipts

memorializing a December 14, 2014 purchase in Culver City, California and a February

10, 2015 purchase in Dallas, Texas. Id. at 9-10.

The prosecution pieced together a timeline from travel records and the receipts

found in the Kia. It theorized that Defendant, after returning to Oklahoma City on

December 9, 2015, rented the Kia and drove back to Los Angeles to pick up Ingram. Id.

at 16-17. The two men then drove to Dallas, rented the apartment, and ultimately returned

to Oklahoma City where they were apprehended on February 17, 2015. Id.

At trial, the jury was presented with overwhelming evidence of Defendant’s

participation in the drug-trafficking and money-laundering conspiracy. That evidence

includes, but is not limited to the following:

• evidence of Defendant’s gang affiliation, id. at 15.;

• evidence of Defendant’s “close connection to Ingram,” id. at 15;

• evidence that Defendant attempted to flee law enforcement after departing the

home of a suspected drug dealer and known gang member, id.;

• evidence that Defendant was driving a rental car where police discovered 650.7

grams of crack cocaine, id. at 16;

• evidence that Defendant had no legitimate source of income sufficient to fund

the money orders, id. at 6;

• evidence supporting a timeline whereby Defendant “(1) flew [from Los

Angeles] . . . to Oklahoma City and rented the Kia, (2) drove the Kia from

Oklahoma City back to Los Angeles to pick up Ingram, (3) drove Ingram from

Los Angeles to Dallas to rent [the specified Dallas] apartment. . . , and (4) drove

Ingram from Dallas back to Oklahoma City,” where, on February 17, 2015,

Defendant and Ingram were apprehended with $4980 in cash and 26 baggies of

crack cocaine, id. at 16-17;

• evidence that Defendant cashed eight money orders “in a manner consistent with

structuring to avoid filing and reporting requirements,” id. at 18; and

• evidence that “the names of people associated with [Defendant] were used to

mail the money orders,” id. at 21.

Defendant timely filed the instant motion on June 28, 2018, alleging ineffective

assistance of counsel. See Def.’s Mot. (Doc. No. 1005) at 4, 14-32. Specifically,

Defendant contends that his trial counsel was ineffective because he: (1) failed to interview

and present testimony from prospective witnesses; (2) failed to adequately cross-examine

prosecution witnesses; (3) failed to subpoena airline records; (4) failed to object to

testimony regarding Defendant’s gang affiliation; (5) failed to object to testimony

regarding travel with Daryl Ingram; (6) elicited hearsay testimony regarding Defendant’s

knowledge of the investigation; (7) failed to introduce into evidence an airline itinerary and

receipt; and (8) advised Defendant against testifying in his own defense.

ANALYSIS

To show that his counsel’s performance was constitutionally ineffective, Defendant

must demonstrate that the performance of counsel was deficient and that such deficiency

prejudiced the outcome of the case. See Strickland v. Washington, 466 U.S. 668 (1984).

To establish the first prong of the Strickland test—that counsel’s performance was

deficient—Defendant must show that counsel’s behavior was unreasonable under

“prevailing professional norms.” Id. at 688. The Supreme Court shuns specific guidelines

for measuring deficient performance, as “[n]o particular set of detailed rules for counsel’s

conduct can satisfactorily take account of the variety of circumstances faced by defense

counsel or the range of legitimate decisions regarding how best to represent a criminal

defendant.” Id. at 688-89. Defendant must overcome the presumption that the “challenged

action ‘might be considered sound trial strategy.’” Id. at 689 (quoting Michel v. Louisiana,

350 U.S. 91, 101 (1955)). “For counsel’s performance to be constitutionally ineffective, it

must have been completely unreasonable, not merely wrong.” Boyd v. Ward, 179 F.3d

904, 914 (10th Cir. 1999).

Even if Defendant shows deficient performance, he must also show prejudice by

establishing “a reasonable probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different.” Strickland, 466 U.S. at 694. “When

a defendant challenges a conviction, the question is whether there is a reasonable

probability that, absent the errors, the factfinder would have had a reasonable doubt

respecting guilt.” Id. at 695. In making that determination, the court must “tak[e] the

unaffected findings as a given” and decide whether the outcome “would reasonably likely

have been different absent the errors.” Id. at 696.

The Court “may address the performance and prejudice components in any order”

and “need not address both if [Defendant] fails to make a sufficient showing of one.”

Cooks v. Ward, 165 F.3d 1283, 1292-93 (10th Cir. 1998).

I. Failure to Interview and Present Testimony from Prospective Witnesses

Defendant first complains that, despite his “specific[] instruct[ion],” counsel failed

to interview and present testimony from two prospective witnesses: (1) Matt Maples,

Defendant’s boss at Rufnex Oil Company; and (2) Detective Keith Medley of the

Oklahoma Police Department. Def.’s Mot. at 20-21. Defendant further criticizes counsel’s

failure to present testimony from Sheba Fisher, who “was on the Government’s witness list

for trial” but “[f]or whatever reason” was not called to testify. Id. at 24-25.

According to Defendant, Maples would have “confirm[ed] [Defendant’s]

employment” and would have further testified “that [Defendant] had told [Maples] . . . of

his planned trip to California a full three (3) weeks before [Defendant] left.” Id. at 20. The

absence of Maples’ testimony, Defendant argues, allowed the jury to infer: (1) “that

[Defendant] did not have a ‘legitimate source of income,’” which implied his involvement

in the charged conspiracy; and (2) “that the trip to California was an attempt to flee law

enforcement,” which, in turn, “allowed the jury to infer that [Defendant] shared [in] the

conspiracy’s common purpose or design.” Id. at 28.

Defendant submits that Detective Medley would have testified to the impossibility

of cooking crack cocaine in a 15-minute period, which would have undermined the

government’s suggestion “that Ingram manufactured 650 grams of cocaine base” during

the few minutes that “he and [Defendant] were inside Anthony Anderson’s house on

February 17, 2015.” Id. at 25-27.

With respect to Sheba Fisher, Defendant argues that her testimony would have

“refute[d] the Government’s contention that the only way her name came to be on the

mailings is through her association with [Defendant]” and would have “cast doubt on the

information she provided to law enforcement.” Id. at 24-25. The absence of Fisher’s

testimony, Defendant urges, “impressed on the jury that Fisher only knew [Defendant],

thus allowing the jury to infer [Defendant]’s participation in the money laundering

conspiracy.” Id. at 30.

Defendant’s speculation regarding the anticipated testimony of these uncalled

witnesses is insufficient to show prejudice under Strickland. Cf. United States v. Smith,

421 F. App’x 889, 900 (10th Cir. 2011) (finding that speculation regarding content of

possible testimony and impact of such testimony on jury verdict was “clearly insufficient”

to prove prejudice). “[T]he speculative witness is often a two-edged sword,” as the Tenth

Circuit has observed, “[f]or as easily as one can speculate about favorable testimony, one

can also speculate about unfavorable testimony.” Boyle v. McKune, 544 F.3d 1132, 1138

(10th Cir. 2008). Defendant fails to establish that Maples, Medley, or Fisher would in fact

“have testified at trial” or that their testimony would “have been favorable” to Defendant.

Snow v. Sirmons, 474 F.3d 693, 730 n.42 (10th Cir. 2007) (internal quotation marks

omitted); accord United States v. Clark, 650 F. App’x 569, 572 (10th Cir. 2016) (agreeing

with district court that counsel’s “failure to interview [the defendant’s] suggested

witnesses” did not amount to ineffective assistance of counsel where “[f]or five of them,

[the defendant] did not provide affidavits to show what they would have testified to” and,

for the two who did provide affidavits, “the affidavits did not indicate that they would have

testified on [the defendant’s] behalf at trial”); see also United States v. Gallant, 562 F.

App’x 712, 715-16 (10th Cir. 2014).

II. Failure to Adequately Cross-Examine Prosecution Witnesses

Relatedly, Defendant contends that counsel failed to “properly” and “thoroughly”

cross-examine two prosecution witnesses: (1) Robert Brister Jackson, Defendant’s uncle;

and (2) Postal Inspector Brian Hess. Def.’s Mot. at 22-23.

Defendant criticizes counsel for failing to “explore[] [the] relationship” between

Jackson and Ingram. Id. at 22. Specifically, Defendant contends counsel should have

“asked Jackson if he knew Daryl Ingram, or if he and Ingram knew each other outside of

[Defendant]” and should have “ask[ed] Jackson about a search warrant executed on his

home in which property of Ingram’s was confiscated.” Id. This line of questioning,

according to Defendant, would have elicited testimony “explain[ing] how Jackson’s name

was used to send mail to California” and refuting the prosecution’s implication “that

[Defendant] is the only one that had a relationship with Jackson.” Id. at 22, 29.

With respect to Inspector Hess, Defendant argues that counsel should have

questioned him regarding “postal service policy and/or standard operating procedure.” Id.

at 23. This testimony, Defendant submits, would have supported Defendant’s contention

“that the reason he cashed the money orders in California in the manner he did was because

the Post Office would not allow him or anyone else to cash more than two at a time.” Id.

Again, Defendant’s argument is based on pure speculation. See Smith, 421 F. App’x

at 900; Boyle, 544 F.3d at 1138. Defendant provides no evidence that, had counsel pursued

his suggested lines of questioning, Jackson or Hess would have testified as predicted.

Accordingly, Defendant has not adequately shown prejudice even assuming counsel’s

performance was deficient. See Smith, 421 F. App’x at 900; Boyle, 544 F.3d at 1138.

III. Failure to Subpoena Airline Records

Defendant next faults counsel for “fail[ing] to subpoena additional flight records

despite [Defendant] telling him to do so.” Def.’s Mot. at 20. According to Defendant, the

flight records “would have shown that [he] flew back to Oklahoma City from California

alone, on January 29, 2015,”3 and that his coconspirator Daryl Ingram “flew from

California to Dallas[,] Texas[,] a few weeks later.” Id. at 21. This information, Defendant

contends, would have “disproven the Government’s version of events during the time of

November 2014 through February 2015”—specifically, that on December 9, 2014,

Defendant “(1) flew [from Los Angeles] . . . to Oklahoma City and rented the Kia, (2)

drove the Kia from Oklahoma City back to Los Angeles to pick up Ingram, (3) drove

Ingram from Los Angeles to Dallas to rent [the specified Dallas] apartment, and (4) drove

Ingram from Dallas back to Oklahoma City,” where, on February 17, 2015, Defendant and

Ingram were apprehended with $4980 in cash and 26 baggies of crack cocaine.4 Id. at 21,

28 (quoting Order & J. at 16-17).

Defendant has not established prejudice resulting from counsel’s failure to subpoena

the flight records at issue. As an initial matter, Defendant has not shown that the records

3 Defendant elsewhere represents that the records in question would have shown that he

“flew back to Oklahoma City from Los Angeles by himself on January 22, 2015.” Def.’s

Mot. at 29; see also Ex. 2 to Def.’s Motion (Doc. No. 1005-2) ¶ 20.

4 Defendant further states that this information “would have validated [Defendant’s] claim

that Ingram unexpectedly called [Defendant] the afternoon of February 17, 2015[,] while

[Defendant] was submitting job applications.” Id. at 21. However, Defendant fails to

explain how the flight records would have confirmed the alleged February 17, 2015 phone

call or the relevance of that phone call in the context of Defendant’s convictions.

are irreconcilable with—and thus “disprove”—the timeline presented by the government.

At any rate, the government’s timeline was only one of “several ways the jury could have

concluded that [Defendant] . . . facilitated the conspiracy’s objective.” Order & J. at 16.

Defendant has not demonstrated that the remaining evidence tying him to the conspiracy

would have been insufficient to support his conviction.

Defendant additionally argues that counsel’s failure to procure and present the flight

records “allowed the jury to infer that [Defendant] and Ingram were constantly in one

another[’]s company.” Def.’s Mot. at 28. Again, Defendant has not demonstrated

prejudice. It was undisputed at trial that Defendant and Daryl Ingram were “close friends”

who took multiple trips together. Trial Tr. (Doc. No. 887) 56:16-57:3. The time they spent

in each other’s presence was heavily documented, e.g., by pictures, video footage, and

testimony, and such evidence was shown to the jury. See id. at 1158:12-1160:8, 2008:20-

2010:12. Flight records showing that Defendant made an isolated trip from California to

Oklahoma City without Ingram would not preclude the inference that the two were

frequently together. Nor would it meaningfully undermine the overwhelming evidence

supporting Defendant’s involvement in the conspiracy.

IV. Failure to Object to Testimony Regarding Defendant’s Gang Affiliation

Defendant’s third complaint—that “[c]ounsel failed to object to Agent

Sch[w]eers[’] hearsay testimony of [his] alleged gang membership”—can be disposed of

because it is belied by the record. Def.’s Mot. at 21. The trial transcript reflects that

counsel for codefendant Michael Banks objected to the testimony at issue and that counsel

for Defendant joined in the objection.5 See Trial Tr. 102:19-21; Clark, 650 F. App’x at

571 (rejecting defendant’s contention “that counsel was ineffective for failing to object to

his criminal-history calculation” where the record showed that counsel did in fact object to

the calculation).

V. Failure to Object to Testimony Regarding Travel with Daryl Ingram

Defendant further criticizes counsel for “fail[ing] to object to Agent Sch[w]eers’

speculation” that Defendant was traveling with Daryl Ingram “between November 6, 2014

and February 17, 2015.”6 Def.’s Mot. at 22 (citing Trial Tr. 126:3-8). Defendant asserts

that he “repeatedly told counsel” that Defendant and Ingram “did not spend a lot of time

together” during that period and provided “documentary evidence” and “contact

information” for witnesses who could testify to that effect. Id.

Defendant has not overcome the presumption that counsel’s failure to object to the

testimony “might be considered sound trial strategy.” Strickland, 466 U.S. at 689 (internal

quotation marks omitted); see also Snow, 474 F.3d at 721; Yarrington v. Davies, 992 F.2d

1077, 1080 (10th Cir. 1993) (“Mere failure to object to evidence does not render an attorney

ineffective”). As noted, it was undisputed at trial that Defendant and Daryl Ingram were

“close friends” and that they took several trips together. Trial Tr. 56:16-57:3. Indeed,

evidence of flights presented to the jury and submitted in support of Defendant’s Motion

5 After receiving argument on the issue, the Court ruled the testimony admissible. See

Trial. Tr. 105:17 to-20.

6 In the exchange at issue, Agent Schweers testified that “between the dates of November

6th and February 17[,] [2015],” Daryl Ingram was “[p]rimarily [in] California and Texas”

“with [Defendant].” Trial Tr. 126:3-8.

confirm that the two traveled together during the relevant time period. See Gov’t Ex. 2400

(Doc. 1015-2) at 7-8; Ex. 1 to Def.’s Mot (Doc. No. 1005-1). In light of this evidence,

counsel may have concluded that any objection to Agent Schweers’ testimony would have

been futile and/or that it would have unduly emphasized the time Defendant spent with

Ingram.

Moreover, Defendant has not shown a “reasonable probability” that, but for

counsel’s failure to object, “the result of the proceeding would have been different.”

Strickland, 466 U.S. at 694. As noted, there was ample evidence that Defendant and

Ingram were frequently together. See Trial Tr. 1158:12-1160:8, 2008:20-2010:12.

Likewise, there was ample evidence, apart from Defendant’s relationship with Ingram, of

Defendant’s involvement in the conspiracy.

VI. Eliciting of Hearsay Testimony Regarding Defendant’s Knowledge of the

Investigation

Defendant criticizes counsel for “elicit[ing] improper hearsay testimony regarding

[Defendant]’s knowledge of the investigation prior to his flight” and then “fail[ing] to ask

the court to strike the testimony.” Def.’s Mot. at 23 (citing Trial Tr. 1217:1-25). In the

cited exchange, counsel asked Lieutenant Matt McRorie whether there was “any evidence

that [Defendant] was aware [of the investigation]” before he flew to California with Daryl

Ingram on November 6, 2014. Trial Tr. 1217:8-9. McRorie responded that the only

evidence consisted of “statements . . . of people that were in contact with [Defendant].” Id.

at 1217:10-15. On further questioning, McRorie stated that he couldn’t “recall specifically

what the witnesses said”; nor was he able to identify any of the alleged witnesses by name.

Id. at 1217:19-25.

Again, Defendant has not overcome the presumption that counsel’s decision to

pursue this line of questioning “might be considered sound trial strategy.” Strickland, 466

U.S. at 689 (internal quotation marks omitted); see also Snow, 474 F.3d at 721. As counsel

explains in his supporting affidavit, he “did not find McRorie’s testimony . . . credible”

because he “failed to provide . . . the names of the witnesses, . . . [the] dates of their

respective statements, . . . the bases for [their] statements, . . . and [their] exact statements.”

Crawford Aff. (Doc. No. 1015-1) at 18. Thus, counsel “did not believe [McRorie’s

testimony] hurt [Defendant]’s case” and perceived “no need to strike [it].” Id.

What’s more, Defendant has not attempted to demonstrate a “reasonable

probability” that, but for the alleged error, “the result of the proceeding would have been

different.” Strickland, 466 U.S. at 694.

VII. Failure to Introduce into Evidence an Airline Itinerary and Receipt

Defendant next complains that counsel failed to present a flight itinerary provided

to him by Defendant. Def.’s Mot. at 23. The itinerary, which is attached as Exhibit 1 to

Defendant’s Motion, indicates that on October 30, 2014, Raven Tanike Barnes used a credit

card to purchase round-trip airline tickets on behalf of Defendant and Daryl Ingram for

travel between Oklahoma City and Los Angeles, specifically: (1) a flight from Oklahoma

City to Los Angeles on November 6, 2014; and (2) a flight from Los Angeles to Oklahoma

City on November 10, 2014. See Ex. 1 to Def.’s Mot. This evidence, Defendant claims,

would have undermined “the Government’s narrative that [Defendant] learned of the

investigation and fled [to California] with Ingram” and would have “also discredited the

reliability of the flight chart [Gov. Ex. 2400] the Government used at trial,” which

“suggested that the tickets were one way tickets that cost $333.95 each and were paid for

in cash.” Def.’s Mot. at 24.

Again, Defendant has not shown a “reasonable probability” that, but for counsel’s

failure to introduce the flight itinerary, “the result of the proceeding would have been

different.” Strickland, 466 U.S. at 694. The possibility that the tickets were purchased one

week prior to the November 6, 2014 flight is not inconsistent with the prosecution’s theory

that Defendant and Ingram fled to California after learning about the investigation. Indeed,

the prosecution presented testimony that Ingram and his coconspirators knew about the

investigation and impending arrests at least one week prior to the execution of the search

warrants on November 7, 2014. See Trial Tr. 353:25-355:9.

Moreover, while the itinerary might have caused the jury to question the reliability

of the information presented in the flight chart, that does not mean that it would have

prompted a different result. Even if the flight chart contained errors, the jury was presented

with the source documents providing the correct information. Government Exhibit 2402

provides the same information as the itinerary attached to Defendant’s Motion. See Ex. 2

to Pl.’s Resp. (Doc. No. 1015-2) at 18. And Defendant has not established that the

remaining evidence of his involvement in the conspiracy would have been insufficient to

sustain his conviction.

VIII. Advising Defendant Against Testifying in His Own Defense

Defendant’s final complaint is that counsel “coerced [him] not to take the stand in

his own defense by telling [him] that the Government had not proven [its] case, and that

[Defendant] taking the stand was a ‘bad idea’ and would hurt his case and cause him to

lose and therefore go back to prison.” See Def.’s Mot. at 27. Defendant argues that, as a

result, the jury was “deprived . . . of [Defendant’s] account of events,” which “allowed the

jury to accept the Government’s theory as fact.” Id. at 31.

Defendant has not, as he must, established that counsel’s advice was “completely

unreasonable.” Boyd, 179 F.3d at 914. Indeed, counsel’s advice was consistent with a trial

strategy that yielded an acquittal on Defendant’s earlier drug charges. See Minute Entries

(Doc. Nos. 84, 87, 91), Case No. CR-15-53-G (W.D. Okla.) (showing that the defense

rested without Defendant taking the stand and Defendant being acquitted).

Moreover, Defendant has not established prejudice. While regretting that he was

unable to relay “[his] account of events,” Defendant fails to “set forth any specifics

regarding what he would have testified to.” United States v. Solarin, 383 F. App’x 772,

774 (10th Cir. 2010); see also Tafoya v. Gunter, No. 95-1237, 1996 WL 80473, at *2 (10th

Cir. Feb. 26, 1996) (defendant failed to establish prejudice stemming from counsel’s advice

that he not testify where he “neglect[ed] to specify or explain the favorable significance of

the lost testimony in question”). Accordingly, Defendant has not demonstrated “that the

result of the trial would have been different had [he] testified.” Underwood v. Massie, 75

F. App’x 747, 749 (10th Cir. 2003).

CERTIFICATE OF APPEALABILITY

Pursuant to Rule 11(a) of the Rules Governing Section 2255 Cases, the Court must

issue or deny a certificate of appealability (“COA”) when it enters a final order adverse to

a defendant. A COA may issue only upon “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 jurists of reason could disagree with the district court’s resolution of his

constitutional claims or that jurists could conclude the issues presented are adequate to

deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327

(2003). Upon consideration, the Court concludes that the requisite standard is not met in

this case. Therefore, a COA is denied.

CONCLUSION

It is therefore ORDERED that Defendant’s Motion to Vacate, Set Aside, or Correct

Sentence (Doc. No. 1) under 28 U.S.C. § 2255 is DENIED. It is further ORDERED that a

certificate of appealability is DENIED. A separate judgment shall be entered.

IT IS SO ORDERED this 19th day of February, 2020.

United States District Judge

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