Brown v. USA, No. 4:2019cv00018 - Document 14 (E.D. Tenn. 2020)
Court Description: MEMORANDUM OPINION: For the reasons stated herein, Petitioner has failed to establish any basis upon which § 2255 relief could be granted, and it is therefore ORDERED that his § 2255 motion [Case No. 4:17-cr-20, Doc. 13 9; Case No. 4:19-cv-18, Doc. 1] is DENIED. A certificate of appealability from the denial of Petitioner's § 2255 motion will be DENIED. A separate judgment will enter. Signed by District Judge Harry S Mattice, Jr on 9/18/2020. (BJL)*Mailed to Tony Tykwon Brown
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Brown v. USA Doc. 14 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TENNESSEE AT WINCHESTER TONY TYKWON BROWN, Petitioner, v. UNITED STATES OF AMERICA, Respondent. ) ) ) ) ) ) ) ) ) Nos. 4:17-cr-20 , 4:19-cv-18 J udge Mattice Magistrate J udge Lee MEMORAN D U M OPIN ION On February 19, 20 19, federal inm ate Tony Tykwon Brown filed a m otion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. [Case No. 4:17-cr-20 , Crim . Doc. 139; Case No. 4:19-cv-18, Doc. 1]. Petitioner argues that the Court lacked subject m atter jurisdiction over his crim in al case, that law enforcem ent and the prosecuting attorney engaged in m isconduct, and that he was deprived of his right to effective assistan ce of counsel due to counsel’s failure to challenge the indictm ent and faulty plea advice. [Doc. 2]. As ordered, the United States filed a response [Doc. 9], to which Petitioner replied [Doc. 10 ]. He has also filed a supplem ent to the Motion to Vacate. [Doc. 12]. Having considered the pleadings and the record, along with the relevant law, the Court finds there is no need for an evidentiary hearing 1 and Petitioner’s § 2255 m otion [Doc. 1; Crim . Doc. 139] will be D EN IED . 1 An evidentiary hearing is required on a § 2255 m otion unless the m otion, files, and record conclusively show that the prison er is not entitled to relief. See 28 U.S.C. § 2255(b). It is the prisoner’s ultim ate burden, however, to sustain his claim s by a preponderance of the evidence. See Pough v. United States, 442 F.3d 959, 964 (6th Cir. 20 0 6). Accordingly, where “the record conclusively shows that the petition er is entitled to no relief,” a hearing is not required. Arredondo v . United States, 178 F.3d 778 , 78 2 (6th Cir. 1999) (citation om itted). Dockets.Justia.com I. BACKGROU N D FACTS AN D PROCED U RAL H ISTORY On J une 27, 20 17, the grand jury returned an eighteen-count indictm ent against Petitioner Tony Brown and three codefendants. [Crim . Doc. 1]. Two charges were against Brown. Count One charged that beginning in Decem ber 20 16 and continuing to J anuary 20 16, 2 Brown conspired to distribute 280 gram s of a m ixture and substance contain ing cocaine base, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846. [Id. at 1]. Count Eighteen charged that on or about February 9, 20 17, Brown aided and abetted a codefendant in distributing a m ixture and substance containing cocaine base. [Id. at 3]. Pursuant to a written plea agreem ent, Brown pleaded guilty to a lesser-included offense of Count One: conspiracy to distribute 28 gram s or m ore of crack cocaine. [Crim . Doc. 91 at 1]. The plea agreem ent recited that due to a prior felony drug conviction, Brown was subject to “at least” a ten-year term of im prisonm ent followed by an eight-year term of supervised release. [Id.]. In the plea agreem ent, Brown adm itted that he and others conspired to distribute at least 28 gram s of cocaine base. [Id. at 3]. Brown further stipulated to the following facts in support of his guilty plea: • Brown joined a conspiracy to distribute cocaine base in and around Fayeteville, Tennessee. • Brown’s role was to receive crack cocaine from other sources and then store or sell it or help others receive and sell crack cocain e. • On J anuary 17, 20 17, law enforcem ent agents m ade a controlled purchase of one ounce of crack cocaine from a co-defendant. The transaction occurred in the driveway of Brown’s father’s house. Directly afterward, agents saw the co- 2 The date-range error appears in the indictm ent and is discussed herein . 2 defendant go into the house. The substance was analyzed and found to contain 26.78 gram s of cocaine base. • On J anuary 24, 20 17, law enforcem ent agents m ade a controlled purchase of one once of crack cocaine from a second co-defendant. The source m et the codefendant in a parking lot and they conducted the transaction. The co-defen dant then walked directly to another car driven by Brown and gave him som e am ount of m oney. The substance was analyzed an d found to contain 24.99 gram s of cocaine base. • Between J anuary 23 rd and 24 th , a confidential source texted a co-defendant “bruh, I do need you today.” The co-defendant responded “aight” and then im m ediately texted Brown saying: “Dude just hit m e up, saying he need one today.” Brown responded it would likely be the next day. The codefendant m essaged the confidential source “m y boy said tom orrow.” The text m essages arranging the transaction continued. • More than one of the co-defendants told law enforcem ent that the defendant was their source for crack cocaine for som e part of the conspiracy. [Crim . Doc. 91 at 2-3]. Pursuant to Rule 11(c)(1)(C), the parties agreed in the written plea agreem ent that a sentence of 120 m onths’ im prisonm ent was an appropriate disposition of the case. [Id. at 4]. In the plea agreem ent, Brown also waived the right to file a direct appeal of his convictions, with one exception: he retained the right to appeal a sen tence im posed above the sentencing guideline range determ ined by the Court or above any m andatory m inim um sentence. [Id. at 6]. He also waived the right to collaterally attack his conviction or sentence, retain ing only the right to file a § 2255 m otion as to (i) prosecutorial 3 m isconduct or (ii) ineffective assistance of counsel. [Id. at 7]. He also waived the right to be presum ed innocent and to have the burden of proof placed on the United States to prove the defendant guilty beyond a reason able doubt. The Presenten ce Investigation Report prepared by the Court’s probation office calculated Brown’s base offense level at 26, added 2 levels for a leadership role, and subtracted 3 levels for acceptance of responsibility, for a total offense level of 25. [Crim . Doc. 123 at ¶¶ 24-34]. The PSR indicates his recom m en ded term of im prisonm ent under the United States Sentencing Guidelines is 70 to 8 7 m onths. [Id. at ¶ 66]. However, due to his prior offense, his statutorily-m andated m inim um sentence was 120 m onths, resulting in an effective guideline range of 120 m onths. [Id. at ¶ 67]. Brown objected to the two-level enhancem ent for a purported leadership role, arguing that the factual allegations of the PSR did not support the enhancem ent. [Crim . Doc. 125]. At sentencing, defense counsel argued Brown’s objection to the PSR and the Governm ent took the position that a ruling on the objection was unnecessary due to the m andatory m inim um and Rule 11(c)(1)(C) plea agreem ent. [See Crim . Doc. 134]. The Court declined to express an opin ion on the exact advisory guideline range, noting that it was lower than the m andatory m inim um with or without the enhancem ent for a leadership role. [Id. at 17-18]. The Court accepted the plea agreem ent and senten ced Brown to 120 m onths’ im prisonm ent. [Id. at 24]. J udgm ent was entered on J uly 9, 20 18 . [Crim . Doc. 131]. Brown did not appeal. On February 19, 20 19, Brown filed his Motion to Vacate [Crim . Doc. 139]. He raises the following grounds for relief: (1) that the prosecutor knew Count Eighteen was false or fabricated and prosecuted Brown anyway; (2) the Court lacked subject m atter jurisdiction over his crim inal case due to errors in the indictm ent; (3) Brown was deprived of his right 4 to effective assistance of counsel because counsel did not m ove to dism iss the defective indictm ent and advised him to plead guilty to charges that were not lodged against him ; and (4) the Court im properly enhanced Petitioner’s sentence under U.S.S.G. § 3B1.1(c) for a leadership role in the conspiracy when the facts did not support such an enhan cem ent. [Doc. 2]. The Governm ent opposes relief, showing that Petitioner waived his right to collaterally attack his conviction or sentence except based on prosecutorial m iscon duct and in effective assistance of counsel. [Doc. 10 ]. As to prosecutorial m isconduct, the United States argues that Petitioner has not shown that law enforcem ent or prosecuting attorneys intentionally supplied false inform ation to the grand jury an d in any event, Brown was not prejudiced by any inaccuracy in the indictm ent because he was not convicted of the offense charged in Count Eighteen. Sim ilarly, the Governm ent argues Petitioner has not pointed to deficiencies in his representation that rise to the level of ineffective assistance and m oreover, the deficiencies he identifies did not prejudice him . Finally, the Governm ent contends that any leadership role ascribed to Petitioner was im m aterial to his sentence in light of the m andatory m inim um . II. STAN D ARD S OF REVIEW After a defendant has been convicted and exhausted his appeal rights, a court m ay presum e that “he stands fairly and finally convicted.” United States v. Frady , 456 U.S. 152, 164 (1982). A court m ay grant relief under 28 U.S.C. § 2255, but the statute “does not encom pass all claim ed errors in conviction and sentencing.” United States v. Addonizio, 442 U.S. 178, 185 (1979). Rather, collateral attack lim its a m ovant’s allegations to those of constitutional or jurisdictional m agnitude, or those containing factual or legal errors 5 “so fundam ental as to render the entire proceeding invalid.” Short v. United States, 471 F.3d 68 6, 691 (6th Cir. 20 0 6) (citation om itted); see also 28 U.S.C. § 2255(a). In a § 2255 action, “[a]n evidentiary hearing ‘is required unless the record conclusively shows that the petitioner is entitled to no relief.’” Martin v. United States, 8 8 9 F.3d 827, 832 (6th Cir. 20 18) (quoting Cam pbell v. United States, 68 6 F.3d 353, 357 (6th Cir. 20 12)). Otherwise, “a district court m ay only forego a hearing where ‘the petitioner’s allegations cannot be accepted as true because they are contradicted by the record, inherently incredible, or conclusions rather than statem ents of fact.’” Id. (quoting MacLloy d v. United States, 684 F. App’x 555, 559 (6th Cir. 20 17)). III. AN ALYSIS A. Pro s e cu to rial Mis co n d u ct Petitioner claim s the allegations in Count Eighteen were fabricated by law enforcem ent and im properly prosecuted. Count Eighteen charges that on or about February 9, 20 17, Brown aided an d abetted a codefendant in distributing crack cocaine. [Crim . Doc. 1 at 3]. According to Petitioner, the controlled buy sum m ary relating to this event indicates Petitioner was in the vehicle during a drug transaction and that Petitioner handed crack cocaine to the confidential source. [Civ. Doc. 2 at 6-7]. Petitioner avers he was not present and the evidence was fabricated by law enforcem ent. He alleges the prosecutor knew that Petitioner was not involved in that transaction and failed to dism iss the charge. Petitioner points to the Governm ent’s response to his PSR objections an d sentencing m em orandum , which states: “The eviden ce in this case indicates that the defendant… did not do hand-to-hand drug exchanges….” [Doc. 2 at 8; Crim . Doc. 128 at 3]. According to the Governm ent, the confidential source believed Brown was in the car, 6 but after the indictm en t, the Governm ent “had som e concern” about whether Brown was in fact present. [Doc. 9 at 2]. Defendant was not convicted or sentenced as to Count Eighteen. In the plea agreem ent, the Governm ent agreed to m ove to dism iss this charge at sentencing, which it did. See United States v. N agi, 541 F. App’x 556, 569 (6th Cir. 20 13) (vacated on other grounds) (prosecutor did not com m it m isconduct by proceeding to trial against a defendant and then dropping charge prior to jury deliberations; witness had becom e unavailable and jury was unaware of the charge). Petitioner claim s the controlled buy sum m ary was false and that the prosecution knew he was not involved in the transaction. He m akes no allegations to support this belief. He does not allege, for exam ple, that he denied involvem ent to the Governm ent or that other evidence put his involvem ent at issue. Even were this contention sufficient to raise an evidentiary dispute, the dispute would be im m aterial because its resolution would not im pact Petitioner’s conviction or sentence. If Petitioner was in fact actually innocent of Count Eighteen, he has already obtained the relief he is entitled to, nam ely, the dism issal of this charge. Petitioner’s prosecutorial m isconduct argum ent is also procedurally defaulted. A m otion to vacate is not a substitute for a direct appeal. Regalado v. United States, 334 F.3d 520 , 528 (6th Cir. 20 0 3). Claim s that could have been raised on direct appeal, but were not, will not be entertained via a m otion under § 2255 unless the petitioner shows: (1) cause and actual prejudice to excuse his failure to raise the claim s previously; or (2) that he is “actually innocent” of the crim e. Ray v. United States, 721 F.3d 758 (6th Cir. 20 13). Here, Petitioner argues he is actually innocent of Count Eighteen and by extension, Count One. Petitioner’s argum ent is based on the m istaken assertion that the conspiracy 7 charged in Count One is based solely on the conduct alleged in Count Eighteen. In fact, the factual basis for the conspiracy charge is com pletely separate. The plea agreem ent identifies specific, adm itted conduct by Petitioner and does not reference the February 9, 20 17 transaction. In the plea agreem ent, Petitioner agreed this conduct was sufficient to satisfy the elem ents of the lesser-included offense of Count One, conspiracy to distribute 28 gram s or m ore of crack cocaine. His alleged innocen ce as to the charge in Count Eighteen is im m aterial to his conspiracy conviction. He raises no other argum ents that would save this claim from procedural default and it m ust therefore be dism issed. B. Su bje ct Matte r Ju ris d ictio n Petitioner argues the Court lacked subject m atter jurisdiction over the crim in al action due to errors in the indictm ent. He identifies the follow purported errors: i) Count One of the indictm ent contained a typographical error, charging a conspiracy beginning Decem ber 20 16 and continuing through J une 20 16; ii) Counts Two through Sixteen “charge absolutely nothing of them selves” and fail to recite indepen dent facts for each count presented; and iii) Count Eighteen was false or fabricated, and was also the only basis for the conspiracy charged in Count One. [Doc. 2]. Subject m atter jurisdiction in a crim in al case is conferred by 18 U.S.C. § 3231, which provides: “The district courts of the United States shall have original jurisdiction, exclusive of the courts of the States, of all offenses against laws of the United States.” “Subject-m atter jurisdiction in every federal crim inal prosecution com es from 18 U.S.C. § 3231, and there can be no doubt that Article III perm its Congress to assign federal 8 crim in al prosecutions to federal courts. That’s the beginning and the end of the ‘jurisdictional’ inquiry.” Hugi v. United States, 164 F.3d 378 , 38 0 (7th Cir. 1999). Subject m atter jurisdiction is not subject to waiver and to that extent, Brown’s claim is reviewable on collateral attack. Short v. United States, 471 F.3d 686, 691 (6th Cir. 20 0 6). But as the Suprem e Court of the United States has held, “defects in an indictm ent do not deprive a court of its power to adjudicate a case.” United States v. Cotton, 535 U.S. 625, 630 (20 0 2); Short, 471 F.3d at 695 (defects in an indictm ent are not jurisdiction al and defendant m ay waive his right to reindictm ent by grand jury). Unlike the Court’s subject m atter jurisdiction, a defendant can waive his grand jury rights. Id. “A valid guilty plea waives all non jurisdictional defects in the defendant’s indictm ent.” United States v. Ball, 12 F.3d 214 (6th Cir. 1993); see Fed. R. Crim . 12(b)(3) (defect in an indictm ent m ust be raised prior to trial). The United States Court of Appeals for the Sixth Circuit has consistently enforced § 2255 waivers in written plea agreem ents. See Cox v. United States, 695 F. App’x 851, 8 53 (6th Cir. 20 17); Davila v. United States, 258 F.3d 448, 450 (6th Cir. 20 0 1). “[I]t is well settled that a defendant in a crim inal case m ay waive ‘any right, even a constitutional right,’ by m eans of a plea agreem ent.” Cox, 695 F. App’x at 853 (quoting United States v. Flem ing, 239 F.3d 761, 763-64 (6th Cir. 20 0 1)) (internal quotation m arks om itted). “To be valid, the waiver sim ply m ust have been entered into knowingly and voluntarily.” Id. Petitioner does not allege that his guilty plea was invalid, unknowing, or involuntary. Accordingly, Petitioner waived the right to challenge the indictm ent. Because Petitioner’s challenges to the indictm ent are not in fact jurisdictional, they were also procedurally defaulted when he failed to raise them on appeal. Regalado v. United States, 334 F.3d 9 520 , 528 (6th Cir. 20 0 3). Moreover, as explained in m ore detailed below, the purported errors were im m aterial to the outcom e of his case. C. In e ffe ctive As s is tan ce o f Co u n s e l Petitioner claim s his trial counsel was in effective because he failed to m ove to dism iss the indictm ent and advised him to plead guilty to charges that were not lodged against him . To establish that he received ineffective assistance of counsel, a convicted defendant m ust satisfy the two-pronged test set forth by the Suprem e Court of the United States in Strickland v. W ashington, 466 U.S. 668 (1984). Strickland holds that a petitioner cannot establish his counsel was ineffective unless he dem onstrates that (1) counsel’s perform ance was deficient, such that counsel did not render reasonably effective assistan ce as m easured by prevailing professional norm s; and (2) he was prejudiced by the deficiency, i.e., there is a reasonable probability that but for counsel’s alleged acts or om issions, the results of the proceedings would have been differen t. Id. at 687-88, 694; Huff v. United States, 734 F.3d 60 0 , 60 6 (6th Cir. 20 13) (applying Strickland test to § 2255 claim s). The failure to satisfy either prong of Strickland requires dism issal of the claim and relieves the reviewing court of a duty to consider the other prong. N ichols v. United States, 563 F.3d 240 , 249 (6th Cir. 20 0 9); see also Strickland, 466 U.S. at 697. Finally, Strickland “requires the defen dant to identify specific acts or om issions by counsel that were ‘outside the wide range of professionally com petent assistance.’” Carter v. Bogan, 90 0 F.3d 754 (6th Cir. 20 18) (quoting Strickland, 466 U.S. at 690 ). 1. Failure to Move to Dism iss Indictm ent Petitioner claim s his counsel should have m oved to dism iss the in dictm ent due to (i) the typographical error in Count One, (ii) the purported substantive deficiencies of Counts Two through Sixteen, and (iii) the alleged fabrication of Count Eighteen. As to 10 Count One, the indictm ent erroneously identifies the dates of the conspiracy as Decem ber 20 16 through J une 20 16. “Although the general rule is that an indictm ent m ay only be am ended by the grand jury, federal courts allow am endm ents when ‘the change is m erely a m atter of form’” United States v. Rosenbaum , 628 F. App’x 923, 928 -29 (6th Cir. 20 15) (quoting Russell v. United States, 369 U.S. 749, 770 (1962)). “Changes of form ” include corrections of clerical or typographical errors. Id. So this error could have been readily am ended. More significantly, the error was not repeated in the plea agreem ent, which set out specific, dated offense conduct to which Petitioner adm itted. Petitioner therefore cannot show that “a substantial right has been affected” by any purported variance from the indictm ent. United States v. Sim m s, 351 F. App’x 64, *2 (6th Cir. 20 0 9) (incorrect date in charging docum ent did not deprive defendant the opportunity to adequately prepare his defense). Since the clerical error could have been corrected and the plea agreem ent included a stipulated factual basis, Petitioner’s counsel was not deficient for failing to m ove to dism iss the indictm ent. Petitioner has not shown how the failure to so m ove would have changed the outcom e of his case. Next, Petitioner’s counsel was not ineffective for failing to m ove to dism iss charges against Petitioner’s codefendants. According to Petitioner, Counts Two through Sixteen are substantively deficient and charge nothin g of them selves. Even if true, these charges were not against Petitioner and their dism issal would not have changed the outcom e of his case. Finally, Petitioner argues his counsel was ineffective for failing to seek dism issal of Count Eighteen, which Petitioner believes was false or fraudulent. Initially, this charge was in fact dism issed at sentencing, so Petitioner’s com plaint with his attorney is 11 unfounded. Petitioner argues, however, that Count Eighteen form s the sole factual basis for the conspiracy charged in Count One. This contention is sim ply wrong, and in light of the written stipulations in his plea agreem ent, not credible. Petitioner did not plead guilty to Count Eighteen and is not incarcerated due to allegedly false inform ation in Count Eighteen. He stipulated to specific, independent facts that dem onstrate he conspired to distribute 28 gram s or m ore of crack cocaine and pleaded guilty to this lesser-included offense of Count One. 2. Advice to Plead Guilty on Counts Seven and Eight Petitioner claim s his counsel advised him to enter a guilty plea as to Counts Seven and Eight of the indictm ent, which were not lodged against him . In his Motion, Petitioner says that because of these “intim idating tactics” by counsel, he entered a plea as to Counts Seven and Eight. [Doc. 2 at 3]. This is incorrect. Petitioner did not plead guilty to these charges; he pleaded guilty to a lesser-included offense of Count One, conspiracy to distribute 28 gram s or m ore of crack cocaine. “To dem onstrate prejudice, [Petitioner] m ust establish that there is a reasonable probability that, but for his counsel’s unprofessional errors, the result of the proceeding would have been different.” Short, 471 F.3d at 693 (cleaned up). Because he did not take his lawyer’s alleged advice, he cannot dem onstrate prejudice. The Governm ent’s response brief points out Petitioner’s error, noting that he pleaded guilty only as to Count One, not Counts Seven an d Eight. In reply, Petitioner argues, for the first tim e, that had his counsel “adequately inform ed him of the laws and elem ents” of conspiracy, he would never have entered a plea of guilty as to Count One. [Doc. 10 ]. This belated allegation is com pletely contradicted by the record. Again, Petitioner m istakenly believes that the February 9, 20 17 transaction alleged in Count 12 Eighteen of the indictm ent was the sole factual basis for the conspiracy charge. Yet his written plea agreem en t explains the elem ents of the offense of conviction and sets out specific factual stipulations that satisfy each elem ent. [Crim . Doc. 91 at 2-3]. The February 9, 20 17 transaction is not am ong them . Moreover, Magistrate J udge Susan Lee conducted Petitioner’s rearraignm ent and specifically found that he understood the nature of the charge and the penalties provided by law. [Crim . Doc. 120 ]. In light of the record, Petitioner has not shown his counsel’s plea advice was constitutionally deficient or that the advice prejudiced him . 3. Miscellaneous Allegations Petitioner also argues his counsel “knew that in regards to the narcotic counts in the indictm ent that a report/ test was conducted, that concluded that it was 90 percent sure that the petitioner’s voice was not detected in the allege voice recording, involving each purchase of narcotics; allegedly involving the petitioner.” [Doc. 2 at 14]. This allegation is sim ply too vague for the Court to determ ine its m eaning. It appears Petitioner is contending that his counsel had proof he was not involved in all the transactions underlying the conspiracy. What Petitioner notably om its to say is that he was not involved in the transactions described in the plea agreem ent. He expressly agreed to conspiring to distribute 28 gram s or m ore of crack cocaine and stipulated to specific transactions as a factual basis for this plea. His vague contention that not all the Governm ent’s proof involved him is insufficient to underm ine his conviction based on his knowing and voluntary guilty plea. D. Se n te n cin g Gu id e lin e s Ch a lle n ge Petitioner argues his sentence was im properly enhanced under U.S.S.G. § 3B1.1(c) for a purported leadership role in the conspiracy. Petitioner’s trial counsel objected to the 13 PSR on the basis that the facts did not support a leadership role enhancem ent. At sentencing, the Court declined to rule on the objection. As the Court explained, Petitioner’s recom m en ded sentence under the Sentencing Guidelines was lower than the m andatory m inim um , with or without the two-point role enhancem ent. After sentencing, Petitioner’s counsel filed a Motion to Am end/ Revise the Court’s Statem ent of Reason s. In the Statem ent of Reasons, the Court adopted the Presentence Investigation Report “without change.” [Crim . Doc. 132]. The Statem ent of Reasons also lists Brown’s offense level as 25. [Id.]. Brown’s counsel asked the Court to am end the statem ent of reasons since it reflects a guidelines determ ination the Court did not m ake or hear argum ent on. [Crim . Doc. 133]. Petitioner waived the right to collaterally attack his sentence in his written plea agreem ent, except as to ineffective assistance of counsel and prosecutorial m isconduct. Neither are im plicated by his Guidelin e Sentencing challenge and the issue is therefore waived. It is also procedurally defaulted because it was not raised on appeal. Finally, challenges to the application of sentencing guidelines are not typically cognizable on collateral review. Bullard v. United States, 937 F.3d 654, 660 (6th Cir. 20 19). The purported error is not a gross m iscarriage of justice – it neither shortens Petitioner’s sentence nor underm ines his conviction. Though Petitioner contends his senten ce is being carried out in a way that is not reflective of his true offense level, this is not an attack on the fact of his conviction and sentence that entitles him to relief under § 2255. IV. CERTIFICATE OF APPEALABILITY When considering a § 2255 m otion, this Court m ust “issue or deny a certificate of appealability when it enters a final order adverse to the applicant.” Rule 11, Rules Governing Section 2255 Proceedings for the United States District Courts. Petitioner 14 m ust obtain a COA before he m ay appeal the denial of his § 2255 m otion. 28 U.S.C. § 2253(c)(1)(B). A COA will issue “only if the applicant has m ade a substantial showing of the denial of a con stitutional right.” 28 U.S.C. § 2253(c)(2). For cases rejected on their m erits, a m ovant “m ust dem onstrate that reasonable jurists would find the district court’s assessm ent of the constitutional claim s debatable or wrong” to warrant a COA. Slack v. McDaniel, 529 U.S. 473, 484 (20 0 0 ). To obtain a COA on a claim that has been rejected on procedural grounds, a m ovant m ust dem onstrate “that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Id. Based on the Slack criteria, the Court finds that a COA should not issue in this cause. V. CON CLU SION For the reasons stated herein, Petitioner has failed to establish an y basis upon which § 2255 relief could be granted, and it is therefore ORD ERED that his § 2255 m otion [Case No. 4:17-cr-20 , Doc. 139; Case No. 4:19-cv-18, Doc. 1] is D EN IED . A certificate of appealability from the denial of Petitioner’s § 2255 m otion will be D EN IED . A separate judgm ent will enter. SO ORD ERED this 18th day of Septem ber, 20 20 . / s/ Harry S. Mattice, Jr. HARRY S. MATTICE, J R. UNITED STATES DISTRICT J UDGE 15
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