Opinion
EP-04-CA-260-DB, EP-01-CR-418-DB.
April 11, 2006
MEMORANDUM OPINION ORDER
Before the Court is Petitioner Paul Gray's ("Gray") pro se "Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence By a Person in Federal Custody" ("Motion to Vacate") [Docket No. 455], filed in the above-captioned cause on July 2, 2004, and amended on July 13, 2004. Therein, Gray moves the Court for relief from the sentence imposed in criminal cause no. EP-01-CR-418-DB. After carefully considering the Parties' pleadings and the record of the proceedings in cause no. EP-01-CR-418-DB, the Court concludes that Gray has not shown that he is entitled to relief regarding his claims. The Court will additionally decline to certify Gray's issues for appeal.
I. BACKGROUND A. Criminal Cause EP-01-CR-418-DB
On August 8, 2001, the federal Grand Jury sitting in El Paso, Texas returned a two-count Superseding Indictment against Gray and fifteen co-defendants. The Government named Gray in only Count One of the Superseding Indictment, alleging that he conspired to possess 1000 kilograms or more of marijuana, a controlled substance, with the intent to distribute it, in violation of 21 U.S.C. §§ 846, 841(a), and 841(b)(1)(A)(vii) ("Count One"). Accompanied by his Court-appointed counsel, Luis E. Islas ("Islas"), Gray appeared before the Court on October 23, 2002, and pleaded guilty to Count One of the Superseding Indictment. The Court accepted Gray's plea, finding that it was knowing and voluntary, and deferred sentencing to allow for the preparation of a Presentence Investigation Report ("PSR"). The Court entered final judgment on December 20, 2002, sentencing Gray to a 120-month term of imprisonment and a 5-year term of supervised release. It additionally order Gray to pay a $100 special assessment.
Islas thereafter sought and was granted permission to withdraw as Gray's attorney of record. The Court subsequently appointed attorney Miguel Angel Torres ("Torres") to represent Gray on direct appeal. Torres filed a brief pursuant to Anders v. California, 386 U.S. 738, 744 (1967), attesting that he had diligently reviewed the record and found no non-frivolous issues for appeal, and asking leave to withdraw. In a Judgment dated October 22, 2003, after an independent review of Torres's Anders brief and the record, the Court of Appeals agreed that the record disclosed no non-frivolous issues for appeal. The Court of Appeals therefore granted Torres's motion for leave to withdraw and dismissed Gray's appeal.
In his "Memorandum in Support of 28 U.S.C. § 2255 Motion to Vacate Set Aside or Correct a Sentence [ sic]," which is attached to his Motion to Vacate filed on July 2, 2004, Gray asserts that the same attorney represented him at his plea and sentencing and on appeal. Pet'r's Mot. to Vacate, docket no. 455, attached Memo. in Support of 28 U.S.C. § 2255 Mot. to Vacate, Set Aside, or Correct Sentence at 1. However, the record does not support Gray's assertion. Rather, as noted, the record shows that Torres represented Gray on appeal.
B. Gray's Motion to Vacate
Gray raises one claim in his original Motion to Vacate, filed on July 7, 2004. Therein, Gray argues that Islas rendered ineffective assistance by advising Gray not to debrief the Government or to discuss his offense conduct with the U.S. Probation Office prior to sentencing ("Ground One"). Because "the U.S. Probation Officer(s) had gleaned so much knowledge of this case from prior interviews with other codefendants and pursuant to the [trial of Mark Anthony Dunkley and Winston White, two of Gray's co-defendants], Gray argues, Islas performed deficiently when he allegedly advised Gray not to cooperate. Gray further argues that Islas's allegedly deficient advice prejudiced him, because as a result of not discussing offense conduct with the Government or the Probation Office, the Court attribute an inaccurate drug quantity to Gray and found that Gray was an organizer in the conspiracy, pursuant to United States Sentencing Guidelines § 3B1.1. Gray also claims that, by not discussing offense conduct with the Government or the Probation Office, he was precluded from receiving a safety valve adjustment pursuant to United States Sentencing Guideline § 5C1.2.
C. Gray's Amended Motion to Vacate
On July 13, 2004, Gray filed an "Amended/Supplement to 28 U.S.C. § 2255 Filed on June 24, 2004 in Light of Recent Supreme Court Rulings in Crawford v. Washington, 541 U.S. ___ (2004); Blakely v. Washington, 542 U.S. ___ (2004) [ sic]" ("Amended Motion to Vacate") [Docket No. 457]. Therein, Gray argues that the Court violated the holdings of Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), Crawford v. Washington, 541 U.S. 36 (2004), and Blakely v. Washington, 542 U.S. 296 (2004) ("Ground Two"). On March 16, 2006, Gray filed a document entitled, "Motion to Supplement Pending Section 2255 Motion" [Docket No. 533]. In that submission, Gray notified the Court that he wished to rely on the Supreme Court's holding in United States v. Booker, 543 U.S. 220 (2005), to support his argument in Ground Two. II. MOTIONS TO VACATE PURSUANT TO 28 U.S.C. § 2255
After a defendant has been convicted and exhausted or waived any right to appeal, a court is normally "entitled to presume that [he] stands fairly and finally convicted." Accordingly, "relief under 28 U.S.C. §§ 2255 is reserved for transgressions of constitutional rights and for a narrow range of injuries that could not have been raised on direct appeal and would, if condoned, result in a complete miscarriage of justice." A criminal defendant seeking relief from his conviction or sentence in a Motion to Vacate pursuant to 28 U.S.C. § 2255 must therefore establish one of the following: (1) his sentence was imposed in violation of the Constitution or laws of the United States; (2) the sentencing court lacked jurisdiction to impose the sentence; (3) the sentence imposed exceeded the maximum authorized by law; or (4) the sentence is otherwise subject to collateral attack.
United States v. Willis, 273 F.3d 592, 595 (5th Cir. 2001); United States v. Shaid, 937 F.2d 228, 231-31 (5th Cir. 1991).
United States v. Gaudet, 81 F.3d 585, 589 (5th Cir. 1996) (internal quotations and citations omitted).
United States v. Seyfert, 67 F.3d 544, 546 (5th Cir. 1995) (citations omitted).
It is well settled that, absent countervailing equitable considerations, a district court will refuse to adjudicate claims that were previously raised and rejected on direct review. It is also well settled that a collateral challenge may not take the place of a direct appeal. If a petitioner challenging his conviction and sentence pursuant to 28 U.S.C. § 2255 could have raised his constitutional or jurisdictional issues on direct appeal, he may not raise them for the first time on collateral review unless he shows cause for his procedural default and actual prejudice resulting from the error or that the constitutional violation has probably resulted in the conviction of one who is actually innocent.
Withrow v. Williams, 507 U.S. 680 (1993).
See Shaid, 937 F.2d at 231 ("[A] collateral challenge may not do service for an appeal").
Id. at 232.
To satisfy the "cause" standard, a petitioner must "show that some objective factor external to the defense prevented him from raising on direct appeal the claim he now advances." The procedural bar does not apply, however, to claims which could not have been raised on direct appeal, such as those alleging ineffective assistance of counsel. To establish "actual innocence" sufficient to overcome the procedural bar to review of his claims, a petitioner must present new evidence which, when considered with all the evidence presented at trial, makes it more likely than not that no reasonable juror would have convicted the petitioner. III. GROUND ONE
United States v. Guerra, 94 F.3d 989, 993 (5th Cir. 1996).
See United States v. Pierce, 959 F.2d 1297, 1301 (5th Cir. 1992) (stating that the general rule in the Fifth Circuit is that, except in rare instances where the record on direct appeal is adequate to evaluate such a challenge, an ineffective assistance of counsel claim cannot be resolved on direct appeal because no opportunity existed for the parties to develop the record on the merits of the allegations).
Schlup v. Delo, 513 U.S. 298, 327-28 (1995).
In Ground One of his Motion to Vacate, Gray argues that Islas performed deficiently by advising Gray not to debrief Government agents and not to discuss offense conduct with the U.S. Probation Office prior to sentencing. Gray further asserts that Islas's allegedly deficient advice prejudiced him in three respects. First, Gray states that, because he did not discuss offense conduct with the Government or the Probation Office, the Court held him responsible for 1814 pounds of marijuana, rather than 600 pounds. Second, Gray claims that, pursuant to United States Sentencing Guidelines § 3B1.1, the Court found that Gray was an organizer in the conspiracy. Lastly, Gray avers that he was precluded from receiving a safety valve adjustment pursuant to United States Sentencing Guideline § 5C1.2.
The Court will first set forth the legal standard governing its merits review of Gray's ineffective assistance claim. It will then consider whether Gray has carried his burden under the applicable legal test.
A. Legal Standard — Ineffective Assistance of Counsel Claims
An ineffective assistance of counsel claim has two components. First, the petitioner must show that counsel performed deficiently. To establish deficient performance, a petitioner must demonstrate that counsel's representation "fell below an objective standard of reasonableness." The Supreme Court has "declined to articulate specific guidelines for appropriate attorney conduct and instead ha[s] emphasized that `the proper measure of attorney performance remains simply reasonableness under prevailing professional norms.'"
Wiggins, 539 U.S. at 521; Strickland v. Washington, 466 U.S. 668, 687 (1984).
Wiggins, 539 U.S. at 521.
Id.
Id. (quoting Strickland, 466 U.S. at 688).
To establish that counsel's representation fell below an objective standard of reasonableness, a petitioner must overcome a strong presumption that his attorney's conduct fell within a wide range of reasonable professional assistance. Reviewing courts are extremely deferential in scrutinizing counsel's performance, making every effort to eliminate the distorting effects of hindsight. It is strongly presumed that counsel rendered adequate assistance and exercised reasonable professional judgment in making all significant decisions. An attorney's strategic choices, usually based on information supplied by the defendant and from a thorough investigation of relevant facts and law, are virtually unchallengeable. Counsel is neither required to advance every non-frivolous argument, nor to investigate every conceivable matter, nor to assert patently frivolous arguments. Defense counsel is similarly not required to exercise clairvoyance during the course of a criminal trial.
Strickland, 466 U.S. at 687-91.
See, e.g., Lockhart v. Fretwell, 506 U.S. 364, 372 (1993) (explaining the compelling policy considerations behind Strickland's contemporary, rather than retrospective, assessment of counsel's conduct); Burger v. Kemp, 483 U.S. 776, 789 (1987) (stating that a fair assessment of attorney performance requires the court to make every effort to eliminate the distorting effect of hindsight and to evaluate counsel's decisions based on the then-existing circumstances and counsel's perspective at the time); Green v. Johnson, 116 F.3d 1115, 1122 (5th Cir. 1997) (stating that the court will not find inadequate representation merely because, with the benefit of hindsight, it disagrees with counsel's strategic choices).
Strickland, 466 U.S. at 690; Drew v. Collins, 964 F.2d 411, 422 (5th Cir. 1992); Duff-Smith v. Collins, 973 F.2d 1175, 1182 (5th Cir. 1992).
See Boyle v. Johnson, 93 F.3d 180, 187-88 (5th Cir. 1996) (holding that an attorney's decision not to pursue a mental health defense or to present mitigating evidence concerning the defendant's possible mental illness was reasonable where counsel feared that the jury would not view such testimony as mitigating and that the prosecution might respond to such testimony by presenting its own psychiatric testimony regarding the defendant's violent tendencies); West v. Johnson, 92 F.3d 1385, 1406-09 (5th Cir. 1996) (holding that a trial counsel's failure to conduct further investigation into the defendant's head injury and psychological problems was reasonable where interviews with the defendant and the defendant's family failed to produce any helpful information); cf. Wiggins, 539 U.S. at 524 (holding that, in a capital case, counsel's decision not to expand its mitigation-defense investigation beyond reviewing a presentence investigation report and Department of Social Services records, despite suggestions that additional, significant mitigating evidence existed, was unreasonable and fell below professional standards).
See Sones v. Hargett, 61 F.3d 410, 415 n. 5 (5th Cir. 1995) (stating that counsel cannot be held deficient for failing to press a frivolous point); United States v. Gibson, 55 F.3d 173, 179 (5th Cir. 1995) (stating that the Sixth Amendment does not require counsel to file meritless motions); Smith v. Collins, 977 F.2d 951, 960 (5th Cir. 1992) (noting that the defense of a criminal case is not an undertaking in which everything not prohibited is required, nor does it contemplate the employment of wholly unlimited time and resources).
See Sharp v. Johnson, 107 F.3d 282, 290 n. 28 (5th Cir. 1997) (holding that clairvoyance is not a required attribute of effective representation).
Furthermore, even if counsel's performance falls below an objective standard of reasonableness, "[a]n error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment." Accordingly, "any deficiencies in counsel's performance must be prejudicial to the defense in order to constitute ineffective assistance under the Constitution."
Strickland, 466 U.S. at 691-92.
Id. at 692.
Because a convicted defendant must satisfy both prongs of the Strickland test, his failure to establish either deficient performance or prejudice under that standard makes it unnecessary for a court to examine whether the petitioner has satisfied the other prong. Therefore, a convicted defendant's failure to establish that his counsel's performance fell below an objective standard of reasonableness avoids the need to consider the issue of prejudice. Similarly, it is also unnecessary to consider whether counsel's performance was deficient where there is an insufficient showing of prejudice. Moreover, mere conclusory allegations in support of claims of ineffective assistance of counsel are insufficient, as a matter of law, to raise a constitutional issue. B. Discussion
Id. at 700; Green, 116 F.3d at 1122; see also Burnett v. Collins, 982 F.2d 922, 928 (5th Cir. 1993) (stating that the defendant bears the burden of proof on both prongs of the Strickland test).
Hoskins, 910 F.2d at 311; Thomas, 812 F.2d at 229-30.
See Strickland, 466 U.S. at 699 (explaining that it is not necessary for a court evaluating the merits of an ineffective assistance claim to analyze the components of the applicable test in any particular order or to evaluate both components if the petitioner fails to carry his burden as to one aspect of the test); Black v. Collins, 962 F.2d 394, 401 (5th Cir. 1992) (stating that a court evaluating a claim of ineffective assistance need not address the components of the applicable test in order, and if a defendant fails to carry his burden as to one component of the test, the court need not address the other component); Pierce, 959 F.2d at 1302 (asserting that an insufficient showing of prejudice pretermits addressing the adequacy prong of the Strickland test for ineffective assistance).
See Kinnamon v. Scott, 40 F.3d 731, 735 (5th Cir. 1994) (holding that a petitioner's speculative complaints of ineffective assistance by appellate counsel did not warrant federal habeas relief).
After due consideration, the Court concludes that Gray has failed to show that Islas performed deficiently or that Gray suffered prejudice directly flowing from Islas's shortcomings, if any. Gray has simply failed to overcome the strong presumption that Islas had strategic reasons, derived from his reasonable professional judgment, for advising his client not to discuss his offense conduct with Government agents or the Probation Office. Debriefing is a double-edged sword. On one hand, a defendant's truthful and complete disclosure of his offense conduct may, in certain cases, establish a basis for the Court to grant him a favorable adjustment at sentencing, pursuant to U.S.S.G. § 5C1.2. On the other hand, such disclosure is also potentially risky, as it may subject the defendant to adverse consequences at sentencing. In addition, even a complete and truthful debriefing will not necessarily insure that the defendant receives a favorable adjustment, as the decision whether to grant such an adjustment ultimately lies within the Court's discretion. On this record, the Court cannot conclude that Islas performed deficiently.
To the extent Gray relies on Spriggs v. Collins, 993 F.2d 85, 89 (5th Cir. 1993), to support his argument, the Court finds that the facts of Spriggs are distinguishable from the case at bar. In Spriggs, the defendant claimed that his counsel was ineffective because he failed to object to allegedly inaccurate information in the presentence investigation report. 993 F.2d at 89. Spriggs does not involve a case in which defense counsel allegedly advised his client not to cooperate with authorities. Also, insofar as Gray can be understood to argue that Islas did not object to inaccurate information in the PSR, the Court finds that the record of the sentencing hearing, which was transcribed for purpose of appeal, does not support his contention. The sentencing hearing transcript shows that Islas argued three objections to the Court. First, Islas challenged a statement in the PSR that Gray had threatened against a Drug Enforcement Agency task force agent with death. Islas also objected to the PSR's recommendation that Gray be held responsible for over 1000 kilograms of marijuana. Lastly, Islas objected to the recommendation that Gray receive a two-level upward adjustment for his supervisorial role. The Court overruled all three objections. When given an opportunity to speak on his own behalf, Gray did not challenge Islas's representation that Islas had reviewed the PSR with Gray, nor did Gray inform the Court of any additional information that he believed to be inaccurate.
See United States v. Thammavong, 378 F.3d 770, 773 (8th Cir. 2004) (concluding that the petitioner's argument, that a reasonable attorney would have pursued a safety valve interview for his client, failed to recognize that the safety valve interview process is not free of risk); United States v. Harris, 230 F.3d 1054, (7th Cir. 2000) (recognizing that a strategic decision not to pursue a safety valve adjustment is not professionally unreasonable where such course of action may risk opening the door to the inclusion of unfavorable facts in the record).
Gray's failure to show deficient performance makes it unnecessary for the Court to determine whether he has met the prejudice prong of Strickland. However, in the interest of thoroughness, the Court notes the following. First, Gray could not have qualified for a safety valve adjustment, due to the Court's finding that he was an organizer in the conspiracy. Second, to the extent Gray argues that the Court would not have found him to be an organizer if Gray had debriefed Government agents or discussed the offense with the Probation Office, the Court finds that his argument lacks merit. As the Court found at sentencing, the statements of Gray's co-conspirators, regarding Gray's role in the offense, were sufficiently corroborated to entitle the Court to rely upon them. In addition, Islas objected to any finding that Gray was an organizer, but the Court overruled his objection. Third, Gray pleaded guilty to conspiracy to possess over 1000 kilograms of marijuana with the intent to distribute it. The fact that Gray personally possessed only 600 pounds of marijuana is not relevant to the amount that he could be held liable for as part of the conspiracy ( i.e., 1574 kilograms). Moreover, although Islas objected to the amount of marijuana attributed to Gray, the Court overruled his challenge. Because Gray has failed to demonstrate prejudice, even if he could show deficient performance by Islas, the Court finds that Gray has not established a claim of constitutionally ineffective assistance of counsel under the Strickland standard.
See U.S.S.G. § 5C1.2(a)(4) (stating that a defendant cannot escape the statutory minimum sentence for an offense under 21 U.S.C. §§ 841 or 846 if he is an organizer in the offense).
IV. GROUND TWO
In Ground Two, Gray argues that the Court violated the holdings of Apprendi, Crawford, and Blakely, as it has been extended to federal sentencing in Booker. For the reasons discussed below, the Court concludes that Gray's claims are either foreclosed by Fifth Circuit precedent, procedurally defaulted, or without merit.
A. Booker and Crawford Do Not Apply Retroactively to Gray's Already-Final Judgment
Because Gray did not seek certiorari review by the Supreme Court, his judgment in cause no. EP-01-CR-418-DB became final no later than January 20, 2004, ninety days after the Court of Appeals issued its Opinion dismissing Gray's direct appeal. Because Gray's judgment was final before either Booker or Crawford were released, and those holdings do not apply retroactively, Gray may not rely on them for relief. B. Gray has Procedurally Defaulted his Apprendi Claim
S.CT.R. 13.1.
See United States v. Gentry, 432 F.3d 600, 605-06 (5th Cir. 2005) (holding that the rule announced in Booker does not apply retroactively to already final judgments and may not be raised for the first time in an initial or successive § 2255 motion); Lave v. Dretke, No. 04-70035, ___ F.3d ___, ___, 2006 U.S. App. LEXIS 7173 at *9 (5th Cir. Mar. 22, 2006) (holding that Crawford does not apply retroactively to convictions that were final before the decision's release on March 8, 2004).
The Court finds that Gray failed to raise his Apprendi claim in his direct appeal and therefore may not raise the issue for the first time in this collateral appeal unless he demonstrates cause and prejudice for his default. After due consideration, the Court finds that Gray has failed to demonstrate prejudice, because there was no Apprendi error in his sentencing.
Shaid, 937 F.2d at 232.
The Apprendi Court held that, "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." The "statutory maximum" for Apprendi purposes, is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.
Apprendi, 543 U.S. at 490.
Booker, 543 U.S. at 228.
Here, by pleading guilty to Count One of the Superseding Indictment, Gray admitted that he conspired to possess more than 1000 kilograms of marijuana with the intent to distribute it. At sentencing, the Court held Gray specifically accountable for 1574.62 kilograms of the drug. It found that the base offense level for a violation of 21 U.S.C. §§ 841(a)(1) and 846 involving 1,574.72 kilograms of marijuana was 32. The Court then added two levels for Gray's role in the offense and subtracted three levels for acceptance of responsibility, bringing Gray's total offense level to 31, Criminal History Category I. The corresponding term of imprisonment for level 31, Criminal History Category I, was 120 to 135 months. The Court actually sentenced Gray to a 120-month term of imprisonment. Gray's sentence therefore did not exceed the statutory maximum term of imprisonment that could be imposed based on Gray's guilty plea and the amount of marijuana attributed to him.
Because Gray must demonstrate both cause and prejudice to overcome the procedural bar to a merits review, the Court finds that his Apprendi argument is not properly before the Court. Alternatively, for the reason discussed in its prejudice analysis, above, the Court finds that Gray's Apprendi argument is without merit.
VI. CERTIFICATE OF APPEALABILITY
To appeal the denial of a Motion to Vacate filed under 28 U.S.C. § 2255, the petitioner must obtain a Certificate of Appealability. Appellate review of a habeas petition is moreover limited to the issues on which a CoA is granted. In other words, a CoA is granted or denied on an issue-by-issue basis, thereby limiting appellate review to solely those issues on which CoA is granted.
See Crutcher v. Cockrell, 301 F.3d 656, 658 n. 10 (5th Cir. 2002), (holding that a CoA is granted on an issue-by-issue basis, thereby limiting appellate review to those issues); Jones v. Cain, 227 F.3d 228, 230 n. 2 (5th Cir. 2000) (holding the scope of appellate review from the denial of habeas petition is limited to issue on which the CoA granted).
28 U.S.C.A. § 2253(c)(3) ; Crutcher, 301 F.3d at 658 n. 10; Hill v. Johnson, 114 F.3d 78, 80 (5th Cir. 1997); Muniz v. Johnson, 114 F.3d 43, 45 (5th Cir. 1997); Murphy v. Johnson, 110 F.3d 10, 11 n. 1 (5th Cir. 1997).
A CoA to appeal the denial of a Motion to Vacate shall be granted only upon "a substantial showing of the denial of a constitutional right." The showing necessary to obtain a CoA on a particular claim depends upon the manner in which the District Court has disposed of a claim. If the Court rejects a prisoner's constitutional claim on the merits, he must then demonstrate that reasonable jurists could find the Court's assessment of the constitutional claim to be debatable or wrong. If the petitioner wishes to challenge the Court's dismissal of a claim for a reason not of constitutional dimension, such as procedural default, limitations, or lack of exhaustion, he must satisfy two requirements. First, the petitioner must demonstrate that jurists of reason would debate whether the petition states a valid constitutional claim. Second, the petitioner must show that jurists of reason would debate whether the Court was correct in its procedural ruling. This Court is authorized to address the propriety of granting a CoA sua sponte.
28 U.S.C.A. § 2253(c)(2); Miller-El, 537 U.S. at 327.
Miller-El, 537 U.S. at 338.
Slack v. McDaniel, 529 U.S. 473, 484 (2000).
Id.
Id.
Alexander v. Johnson, 211 F.3d 895, 898 (5th Cir. 2000).
After considering the entire record and the Parties' pleading, the Court concludes that jurists of reason could not debate whether Gray has stated a valid claim for relief or whether a procedural ruling in this case is correct. Accordingly, the Court will deny Gray a CoA regarding his claims.
VII. CONCLUSION ORDER
For the reasons discussed above, the Court finds that Gray is not entitled to relief regarding the claims he raises in his Motion to Vacate. The Court additionally finds that Gray is not entitled to a Certificate of Appealability. The Court accordingly enters the following Orders:
1. Petitioner Paul Gray's pro se "Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence By a Person in Federal Custody" [Docket No. 455], filed in the above-captioned cause on July 2, 2004, and amended on July 13, 2004 [Docket No. 457], is hereby DENIED.
2. The Court DENIES Petitioner a Certificate of Appealability with respect to his claims.
3. All pending motions in this cause, if any, are DENIED AS MOOT, including Petitioner's "Motion to Supplement Pending Section 2255 Motion" [Docket No. 533].
SO ORDERED.