# Fortune v. United States

> District Court, E.D. Tennessee · March 16, 2022

URL: https://www.frixlaw.com/law-library/cases/10434811

## Case

- **Court:** District Court, E.D. Tennessee
- **Decided:** March 16, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10434811

## How later opinions describe it (automated extraction)

- noting that the Petitioner had not shown that his ability to present a defense was prejudiced by the alleged constitutional error
- finding an § 851 notice sufficient where it correctly stated only the type of offense and the location of the conviction

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT GREENEVILLE

LAMONT DARNELL FORTUNE, )
)
Petitioner, )
)
v. ) Nos. 2:20-CV-139
) 2:15-CR-132
UNITED STATES OF AMERICA, )
)
Respondent. )

MEMORANDUM OPINION
Before the Court is Lamont Darnell Fortune’s (“Petitioner’s”) pro se motion to
vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. [Doc. 1; Criminal
Docket (“Crim.”) Doc. 255].1 The United States has responded in opposition. [Doc. 7].
Petitioner did not file a reply, and the time for doing so has passed. See Rule 5(d) of the
Rules Governing Section 2255 Proceedings for the United States District Courts; [see also
Doc. 4]. Petitioner has also filed a motion for an extension of time to file a memorandum
of law in support of his § 2255 motion [Doc. 2] and a motion to grant his § 2255 motion
[Doc. 9], which are pending before this Court. For the reasons below, Petitioner’s § 2255
motion [Doc. 1; Crim. Doc. 255] will be DENIED, his motion to grant [Doc. 9] will be
DENIED, and his motion for an extension [Doc. 2] will be DENIED as MOOT.
I. BACKGROUND

1 Document numbers not otherwise specified refer to the civil docket.
In November 2015, Petitioner and three co-defendants were charged in an eleven-
count Indictment pertaining to conspiracy and distribution of 280 grams or more of a
mixture and substance containing a detectable amount of cocaine base (“crack”), a

Schedule II controlled substance, in violation of 21 U.S.C. §§ 846, 841(a)(1), and
841(b)(1)(A) along with related forfeiture allegations. [Crim. Doc. 3]. Petitioner was
named in three counts and the forfeiture allegations. [See id.].
Prior to trial, the Government filed a total of three 21 U.S.C. § 851(a)(1) notices of
intention to seek increased punishment based on prior felony drug convictions. The first

provided information regarding Petitioner’s November 1997 North Carolina conviction.
[Crim. Doc. 11]. The second added information regarding another prior conviction, this
one in 1999 in Virginia. [Crim. Doc. 49]. These two notices were filed before Petitioner’s
trial began. The third notice, filed after trial, omitted Petitioner’s 1997 North Carolina
conviction and corrected a clerical error in the case number for Petitioner’s 1999 Virginia

conviction. [Crim. Doc. 146].
On April 20, 2017, after a two-day trial, Petitioner was found guilty as to Counts
One and Eight of the Indictment by a jury of his peers. [Crim. Doc. 155].2 At the close of
the Government’s case-in-chief, Petitioner moved for a judgment of acquittal pursuant to
Rule 29, which was denied by the Court. [Crim. Doc. 153].

Prior to sentencing, a Presentence Investigation Report (“PSR”) was prepared. The
PSR calculated a total offense level of 34 and a criminal history category of VI, resulting

2 The Court incorporates by reference the facts of the case as set forth in the Offense Conduct
section of the PSR. [Crim. Doc. 200, ¶¶ 6-14].
in a guideline range of 262 to 327 months. [Crim. Doc. 200, ¶ 72]. Pursuant to the
Government’s § 851 notice, the statutory mandatory minimum sentence was enhanced to
20 years, or 240 months’ imprisonment. [Id. at ¶ 71]

The Government filed a notice of no objections to the PSR. [Crim. Doc. 202]. The
Government also filed sentencing memorandum wherein it responded to Petitioner’s
objections to the PSR, concurred that the correct advisory guideline calculation was 262 to
327 months’ imprisonment, and recommended a 262-month sentence. [Crim Doc. 214].
Petitioner, through counsel, filed a notice of objections to the PSR. [Crim. Doc.

205]. Petitioner raised objections to the facts (and admittedly fairly reflected trial
testimony) in the Offense Conduct section of the PSR; the facts in paragraphs 33, 36, 39
regarding his prior convictions; the finding that he was responsible for 1.8 kilograms of
drugs; the two-level enhancement pursuant to U.S.S.G. § 3C1.2 for obstruction of justice,
the two-point criminal history enhancement for being on probation for a prior offense when

he committed the instant offense; the finding that he was convicted of the offenses listed
in paragraphs 36, 38, and 39; the determination that Petitioner fell within criminal history
category VI; the inclusion of offense listed in paragraphs 47-58 which had previously been
dismissed, some after a jury trial; and the advisory guidelines range as it would need to be
recalculated if the Court sustained Petitioner’s objections. [Id.]. The Government

responded to Petitioner’s objections in its sentencing memorandum [Crim. Doc. 214], and
the probation officer filed a PSR addendum, addressing Petitioner’s objections and
including supporting documents for specific objections. [Crim. Doc. 215]. After
considering the filings and applicable law, the Court overruled all of Petitioner’s
objections. [Crim. Doc. 218].
Petitioner, through counsel, also filed a sentencing memorandum, requesting a

sentence of 240 months, the statutory mandatory minimum. [Crim. Doc. 213]. Petitioner
argued that 240 months was proper if the Court sustained Petitioner’s objections to the
PSR, that the § 3553 factors weigh in favor of a 240 months’ sentence, that 240 months
would afford adequate deterrence – both specific and general, that 240 months was a
significant and severe punishment, and that anything more than 240 months would have

been “overkill as it relate[d] to this defendant.” [Id.]. Petitioner also alternatively argued
for a bottom of the guidelines sentence of 262 months if the Court overruled Petitioner’s
objections and was inclined to sentence Petitioner within the advisory guideline range.
[Id.].
On August 17, 2017, the Court sentenced Petitioner to a total of 272 months’

imprisonment followed by 10 years of supervised release. [Crim. Doc. 221]. Petitioner filed
a direct appeal on August 28, 2017. [Crim. Doc. 223]. The Court of Appeals issued a ruling
affirming Petitioner’s sentence on December 26, 2018. [Crim. Doc. 247]. Petitioner
requested and received an extension of time to file a petition for a writ of certiorari,
extending his time to file up to and including May 27, 2019. [Doc. 2, p. 5]. Petitioner failed

to timely file a petition for writ of certiorari and his second motion for an extension of time
to file was denied as he had already been granted an extension for the maximum amount
of time allowed. [Id. at 6]. On June 23, 2020, Petitioner filed the instant § 2255 motion.
II. STANDARD OF REVIEW
Under § 2255(a), a federal prisoner may move to vacate, set aside, or correct his
judgment of conviction and sentence if he claims that the sentence was imposed in violation
of the Constitution or laws of the United States, that the court lacked jurisdiction to impose

the sentence, or that the sentence is in excess of the maximum authorized by law or is
otherwise subject to collateral attack. 28 U.S.C. § 2255(a). As a threshold standard, to
obtain post-conviction relief under § 2255, the motion must allege: (1) an error of
constitutional magnitude; (2) a sentence imposed outside the federal statutory limits; or
(3) an error of fact or law so fundamental as to render the entire criminal proceeding

invalid. Mallett v. United States, 334 F.3d 491, 496-97 (6th Cir. 2003); Moss v. United
States, 323 F.3d 445, 454 (6th Cir. 2003).
A movant bears the burden of demonstrating an error of constitutional magnitude
which had a substantial and injurious effect or influence on the criminal proceedings. See
Reed v. Farley, 512 U.S. 339, 353 (1994) (noting that the Petitioner had not shown that his

ability to present a defense was prejudiced by the alleged constitutional error); Brecht v.
Abrahamson, 507 U.S. 619, 637-38 (1993) (addressing the harmless-error standard that
applies in habeas cases alleging constitutional error). To obtain collateral relief under
§ 2255, a movant must clear a significantly higher hurdle than would exist on direct appeal.
United States v. Frady, 456 U.S. 152, 166 (1982).

When a defendant files a § 2255 motion, he must set forth facts which entitle him
to relief. Green v. Wingo, 454 F.2d 52, 53 (6th Cir. 1972); O’Malley v. United States, 285
F.2d 733, 735 (6th Cir. 1961). A movant must prove that he is entitled to relief by a
preponderance of evidence. Pough v. United States, 442 F.3d 959, 964 (6th Cir. 2006). A
motion that merely states general conclusions of law, without substantiating the allegations
with facts, is without legal merit. Loum v. Underwood, 262 F.2d 866, 867 (6th Cir. 1959);
United States v. Johnson, 940 F. Supp. 167, 171 (W.D. Tenn. 1996).

Under Rule 8(a) of the Governing Rules, the Court is to review the answer, any
transcripts, and records of prior proceedings and any material submitted under Rule 7 to
determine whether an evidentiary hearing is warranted. Rules Governing Section 2255
Proceedings, Rule 8(a). If a petitioner presents a factual dispute, then “the habeas court
must hold an evidentiary hearing to determine the truth of the petitioner’s claims.” Huff v.

United States, 734 F.3d 600, 607 (6th Cir. 2013) (quoting Valentine v. United States, 488
F.3d 325, 333 (6th Cir. 2007)). An evidentiary hearing is not required “if the petitioner’s
allegations cannot be accepted as true because they are contradicted by the record,
inherently incredible, or conclusions rather than statements of facts.” Valentine, 488 F.3d
at 333 (quoting Arrendondo v. United States, 178 F.3d 778, 782 (6th Cir. 1999)). The Court

FINDS no need for an evidentiary hearing in the instant case.
III. ANALYSIS
Petitioner raises one claim of ineffective assistance of counsel in this § 2255 motion:
for failing to “research and investigate” or “raise a proper challenge to the mandatory
minimum enhanced sentencing under 21 U.S.C. § 841(b)(1)(A)”. [Doc. 1, p. 4; Crim. Doc.

255]. The Government responds that Petitioner cannot show deficient performance because
Petitioner was properly subjected to the statutory sentence enhancement for his 1999
Virginia felony drug conviction, and the Government provided reasonable notice of its
intent to enhance Petitioner’s sentence based on the prior conviction. [Doc. 7, pp.5-6].
Further, the Government contends that Petitioner cannot show prejudice because the
sentencing enhancement did not increase or otherwise affect the advisory guidelines range
within which Petitioner was sentenced and did not affect the district court’s selection of

the sentence imposed. [Id. at 7]. The Court will address Petitioner’s ineffective assistance
claim before addressing his non-dispositive motions.
A. Ineffective Assistance of Counsel Claim
1. Timeliness
As a preliminary matter, the Government asserts that Petitioner’s motion is untimely

as the one-year period of limitations applies to Petitioner’s motion. [Id. at 4]. Under 28
U.S.C. § 2255, Petitioner’s limitation period runs from the latest of four dates – 1) the date
when the judgment of conviction is finalized, 2) the date an impediment by government
action is removed if applicable, 3) the date the asserted right was initially recognized by
the Supreme Court or the date when a newly recognized right is made retroactively

applicable, and 4) the date when the facts surrounding the claim(s) could have been
discovered through due diligence. Here, Petitioner does not assert a newly recognized right,
nor does he assert any impediment by government action keeping him from timely filing
this § 2255 motion. Therefore, the appropriate limitations date is the later date of when
Petitioner’s judgment became final or when the facts supporting the claim could have been

discovered.
Petitioner’s claims are based on facts surrounding Petitioner’s prior 1999 Virginia
felony drug conviction and its effect on Petitioner’s sentence. These are facts which could
have been discovered prior to Petitioner’s sentencing hearing in August 2017 through the
exercise of due diligence. Because Petitioner filed an appeal, but did not file a petition for
certiorari, Petitioner’s judgment became final May 28, 2019, and thus, as the later of the
two dates, is the date the Court will use in determining timeliness of the motion. See Johnson

v. United States, 246 F.3d 655, 657 (6th Cir. 2001). As Petitioner filed the instant motion June
23, 20203, almost a month beyond the period of limitations provided in 28 U.S.C. §
2255(f)(1), his motion is untimely, absent the applicability of equitable tolling.
Equitable tolling “allows courts to toll a statute of limitations when ‘a litigant's
failure to meet a legally-mandated deadline unavoidably arose from circumstances beyond

that litigant's control.’” Robertson v. Simpson, 624 F.3d 781, 783 (6th Cir. 2010)
(quoting Graham-Humphreys v. Memphis Brooks Museum of Art, Inc., 209 F.3d 552, 560-
61 (6th Cir. 2000)). The AEDPA limitations period may be subject to equitable tolling if
the movant shows that (1) extraordinary circumstances beyond his control made timely
filing of a federal habeas petition impossible and (2) the movant has acted diligently in

pursuing his rights. Holland v. Florida, 560 U.S. 631, 649 (2010). “[T]he doctrine of
equitable tolling is used sparingly by federal courts,” Robertson, 624 F.3d at 784, and the
movant bears the burden of showing that equitable tolling is appropriate. McClendon v.
Sherman, 329 F.3d 490, 494 (6th Cir. 2003). Petitioner alleges the lockdowns due to

3 Petitioner claims in a mostly illegible note attached to his § 2255 motion that he had prepared his
§ 2255 motion in March 2020, but was unable to file until June 2020, due to the various procedures
and lockdowns put in place in response to the COVID-19 global pandemic. [Doc. 1, Ex. 1].
However, applying the prison mailbox rule, Petitioner's § 2255 motion is deemed filed on June 23,
2020, the date on the handwritten note attached to the § 2255 motion, as there is no date on the
actual § 2255 motion. [Doc. 1, Ex. 1, p.1]; see Towns v. United States, 190 F.3d 468, 469 (6th Cir.
1999).
COVID-19 and limited access to the legal library after March 2020, prevented him from
timely filing his motion. [Doc. 1, Ex. 1].
While pandemic-related lockdowns and loss of law library access can warrant

equitable tolling in certain circumstances, those “certain circumstances” involve
defendants who had been pursuing their rights diligently. See Dunn v. Baca, No. 3:19-cv-
702, 2020 WL 2525772, at *2 (D. Nev. May 18, 2020) (finding that the pandemic had
prevented counsel from obtaining necessary court records and halted ongoing
investigations leaving “little to no doubt” that defendant was pursuing his rights diligently);

but see United States v. Barnes, No. 18-cr-154, 2020 WL 4550389, at *2 (N.D. Okla. Aug.
6, 2020) (“Even assuming that a lockdown due to the COVID-19 pandemic delayed
defendant's ability to file his motion, it does not explain the more than one-year
delay. COVID-19 measures have been in effect since March 2020, and defendant could
have filed his motion long before March 2020.”). Here, Petitioner could have filed his §

2255 motion well before the COVID-19 procedures were put in place but failed to do so.
“Courts have consistently held that general allegations of placement in segregation
and lack of access to legal materials are not exceptional circumstances warranting equitable
tolling, especially where a petitioner does not sufficiently explain why the circumstances
he describes prevented him from timely filing a habeas petition[.]” Andrews v. United

States, No. 17-1693, 2017 WL 6376401, at *2 (6th Cir. Dec. 12, 2017). Here, Petitioner has
made general allegations without sufficient explanation. Petitioner attached memos from
the prison regarding new procedures as of April 1, 2020, and June 2, 2020, which seem to
still provide limited computer time for Petitioner and do not address how Petitioner was
prevented from timely filing his § 2255 motion. [Doc. 1, Ex. 1, pp. 4-5]. While Petitioner
also provided the Court with two hand-written notes, neither seem to explain why
Petitioner was unable to timely file his § 2255 motion.4 [Doc. 1, Ex. 1, pp. 1-3 & 6].

Accordingly, Petitioner has not established that equitable tolling is warranted, and
his § 2255 motion [Doc. 1; Crim. Doc. 255] will be DENIED as untimely.
2. Merits
Even if Petitioner had timely filed his § 2255 motion, Petitioner’s claim fails on its
merits. The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused

shall enjoy the right . . . to have the assistance of counsel for his defense.” U.S. Const.
amend. VI. A criminal defendant’s Sixth Amendment right to counsel necessarily implies
the right to “reasonably effective assistance” of counsel. Strickland v. Washington, 466
U.S. 668, 687 (1984). Under the Strickland standard for proving ineffective assistance of
counsel, a movant must show: (1) that counsel’s performance was deficient; and (2) that

the deficient performance prejudiced the defense. Id.
To prove deficient performance, the movant must show “that counsel made errors
so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by
the Sixth Amendment.” Id. The appropriate measure of attorney performance is
“reasonableness under prevailing professional norms.” Id. at 688. A movant asserting a

4 Liberal federal pleading standards do not permit litigants—even those acting pro se—to proceed
on pleadings that are not readily comprehensible. Cf. Becker v. Ohio State Legal Servs. Ass'n, 19
F. App'x 321, 322 (6th Cir. 2001). While the Court was unable to fully decipher Petitioner’s
handwriting, it does not appear from the legible portions of Petitioner’s notes that he has provided
sufficient evidence to warrant equitable tolling.
claim of ineffective assistance of counsel must “identify the acts or omissions of counsel
that are alleged not to have been the result of reasonable professional judgment.” Id. at 690.
The evaluation of the objective reasonableness of counsel’s performance must be made

“from counsel’s perspective at the time of the alleged error and in light of all the
circumstances, and the standard of review is highly deferential.” Kimmelman v. Morrison,
477 U.S. 365, 381 (1986). It is strongly presumed that counsel’s conduct was within the
wide range of reasonable professional assistance. Strickland, 466 U.S. at 690.
The prejudice prong “requires showing that counsel’s errors were so serious as to

deprive the defendant of a fair trial, a trial whose result is unreliable.” Id. at 687. The
movant must demonstrate “a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different[.]” Id. at 703. Counsel is
constitutionally ineffective only if a performance below professional standards caused the
defendant to lose what he “otherwise would probably have won.” United States v. Morrow,

977 F.2d 222, 229 (6th Cir. 1992).
Petitioner’s primary argument for ineffective assistance of counsel is that his
counsel did not raise a proper challenge to the enhancement for Petitioner’s prior felony
drug conviction. [Doc. 1, p. 5]. Petitioner also makes a conclusory statement that his
attorney did not investigate properly whether Petitioner’s 1999 Virginia conviction was a

felony drug conviction for enhancement pursuant to 21 U.S.C. § 851. [Id.].
Petitioner’s primary argument fails at Strickland’s second step. Petitioner faults
counsel for not raising a proper challenge to the use of the 1999 Virginia conviction for a
sentence enhancement because the § 851 notice did not identify “elements of the crime,
such as relevant penal codes, drug amounts and types of substance, as required for
definition of ‘felony drug offense’ under 21 U.S.C. § 802(44).” [Doc. 1, p. 4]. Under
controlling precedent, reasonable notice of the Government’s intent to rely on a particular

conviction to seek enhancement and an opportunity for a defendant to contest the
enhancement are all that is required to sustain an enhancement, regardless of strict
compliance to the § 851(a) requirements. United States v. Brown, 737 F. App’x 741, 749
(6th Cir. 2018) (citing cases); see also [Crim. Doc. 247, pp. 10-11]. The Sixth Circuit has
also warned against “elevating form over substance” in the § 851 context. United States v.

King, 127 F.3d 483, 489 (1997) (finding an § 851 notice sufficient where it correctly stated
only the type of offense and the location of the conviction).
Because the Government provided reasonable notice of its intent to use Petitioner’s
1999 Virginia conviction to seek enhancement, and Petitioner was given an opportunity to
contest the enhancement, raising an argument that the § 851 notice was deficient would

have been frivolous. The law simply does not require an § 851 notice to contain the
information Petitioner asserts should have been included. See United States v. Layne, 192
F.3d 556, 576 (6th Cir. 1999) (Section 851 does not describe “the specificity to which the
government must identify prior convictions.”). Counsel cannot be deemed ineffective for
not raising frivolous arguments. Chapman v. United States, 74 F. App’x 590, 593 (6th Cir.

2003).
Further, the Government contends, and the record supports, that the enhanced
statutory penalties did not increase or otherwise affect the advisory guidelines range within
which Petitioner was sentenced. [Doc. 7, p. 7]; see also [Crim. Docs. 200, ¶ 71; 222, p. 2].
Petitioner’s prior drug felony conviction enhancement only affected the statutory
mandatory minimum, raising it to 20 years. [Crim. Doc. 200, ¶ 71]. However, Petitioner’s
advisory guidelines range, based solely on his totally offense level and criminal history

category, was 262 to 371 months’ imprisonment. [Id. at ¶ 72].
When the Court sentenced Petitioner to 272 months’ imprisonment, the Court did
so specifically because of the seriousness of the offense and Petitioner’s extensive criminal
history and probation violations. [Crim. Doc. 222, p. 2]. According to the record, the Court
was concerned that Petitioner had a long criminal history of selling drugs, that he had

violated his conditions of supervised release or probation in almost every one of those
cases, that Petitioner had no employment history other than that of selling drugs, and that
Petitioner seemed “very comfortable” in following a drug selling career. [Id. at 7-10].
There is no evidence that the § 851 enhancement for Petitioner’s prior 1999 Virginia felony
drug conviction had any effect on the Court’s ultimate sentencing decision.

To the extent that Petitioner is arguing that the Government’s § 851 notice for the
1999 Virginia conviction was insufficient to sustain the § 851 statutory enhancement, this
issue was already litigated on direct appeal and is not reviewable absent highly exceptional
circumstances, such as an intervening change in the law. See [Crim. Doc. 247, pp. 9-12];
Oliver v. United States, 90 F.3d 177, 180 (6th Cir. 1996); Jones v. United States, 178 F.3d

790, 796 (6th Cir. 1999); Davis v. United States, 417 U.S. 333, 345 (1974). There has been
no intervening change in the law in this case, nor has Petitioner shown exceptional
circumstances indicating a “complete miscarriage of justice.”
Petitioner’s secondary argument that his counsel failed to investigate is a conclusory
statement and lacks specific factual support. Petitioner has not specified what his counsel
may have discovered through further investigation or how further investigation would have

affected the outcome of his case. As a result, the Court can reject this contention as
insufficient to sustain the motion. See Ushery v. United States, No. 20-5292, 2020 U.S.
App. LEXIS 21840, at *3–4 (6th Cir. July 14, 2020). Further, the PSR negates any argument
that Petitioner’s prior 1999 Virginia conviction was not a felony drug conviction because
Petitioner was sentenced to 20 years’ imprisonment for possession with intent to distribute

crack cocaine, a Schedule II substance. [Crim. Doc. 200, ¶ 33]. Petitioner has provided no
evidence that the PSR is factually incorrect.
Accordingly, Petitioner’s ineffective assistance of counsel claim alternatively fails
on its merits and will be DENIED.
3. Non-Dispositive Motions [Docs. 2 & 9]

In his motion for an order granting his § 2255 motion, Petitioner alleges that the
United States failed to timely respond to his § 2255 motion per the Court’s extension order
[Doc. 6] and requests the Court issue a default judgment in Petitioner’s favor and summary
judgment granting relief. [Doc. 9]. This allegation is contradicted by the record and not
credited. Blackledge v. Allison, 431 U.S. 63, 74 (1977). On August 6, 2020, the United

States requested an extension of time to file its response [Doc. 5], which the Court granted,
and gave the United States up to and including September 11, 2020, to file its response.
[Doc. 6]. The United States filed its response on September 11, 2020, which was within
the timeframe authorized by the Court. [Doc. 7].
Further, default judgment and summary judgment are unavailable in this context
because Petitioner can only obtain relief under § 2255 upon satisfying his burden “to show
that he is in custody in violation of the Constitution of the United States.” Allen v. Perini,

424 F.2d 134, 138 (6th Cir. 1970). Accordingly, Petitioner’s motion for order granting §
2255 motion [Doc. 9] will be DENIED.
Petitioner has also filed a motion for extension of time to file a memorandum of
law for his § 2255 motion. [Doc. 2]. As discussed above, the Court has determined that

Petitioner did not timely file his original § 2255 motion, nor is he entitled to relief under
the prevailing law and specific facts of his claim. Accordingly, Petitioner’s motion for
an extension of time to file a memorandum of law [Doc. 2] will be DENIED as MOOT.
IV. CONCLUSION
For the reasons above, Petitioner’s § 2255 motion [Doc. 1; Crim. Doc. 255] will be

DENIED and DISMISSED. His motion for extension of time to file [Doc. 2] will be
DENIED as MOOT, and his motion for an order granting his § 2255 motion [Doc. 9] will
be DENIED.
V. CERTIFICATE OF APPEALABILITY
Under 28 U.S.C. § 2253(c)(2), the Court must determine whether a certificate of

appealability should be granted. A certificate should issue if a petitioner has demonstrated
a “substantial showing of a denial of a constitutional right.” Id. The district court must
“engage in a reasoned assessment of each claim” to determine whether a certificate is
warranted. Murphy v. Ohio, 263 F.3d 466, 467 (6th Cir. 2001). Each issue must be
considered under the standards set forth by the Supreme Court in Slack v. McDaniel, 529
U.S. 473 (2000). Id.
A petitioner whose claims have been rejected on the merits satisfies the

requirements of § 2253(c) by showing that jurists of reason would find the assessment of
the claims debatable or wrong. Slack, 529 U.S. at 484. Having examined Petitioner’s claims
under the Slack standard, the Court finds that reasonable jurists could not find that the
dismissal of those claims was debatable or wrong. Therefore, the Court will DENY
issuance of a certificate of appealability.

A separate judgment will enter.
IT IS SO ORDERED.
ENTER:
s/ Leon Jordan
United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10434811. Public record. Not legal advice.