Opinion
No. 08-3089.
Filed On: September 18, 2009.
BEFORE: Tatel, Griffith, and Kavanaugh, Circuit Judges.
ORDER
Upon consideration of the motion for a certificate of appealability ("COA"), the affidavit in support thereof, and the lodged revised supplemental motion for a COA; the motion for leave to file the lodged revised supplemental motion for a COA; the motion for appointment of counsel; and the motion to dismiss for lack of a COA; it is
ORDERED that the motion for appointment of counsel be granted. The interests of justice warrant appointment of counsel in this case. See 18 U.S.C. § 3006A(a)(2)(B). It is
FURTHER ORDERED that the motion for leave to file the supplemental revised motion for a COA be granted. The Clerk is directed to file the lodged revised supplemental motion. It is
FURTHER ORDERED that the motion for a COA be denied and the motion to dismiss for lack of a COA be granted. A COA will issue only upon "a substantial showing of the denial of a constitutional right," 28 U.S.C. § 2253(c)(2), and this requirement is met if "reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong," Slack v. McDaniel, 529 U.S. 473, 484 (2000). Appellant has not made a substantial showing of the denial of a constitutional right on his challenge to the factual basis for his guilty plea. Appellant stated during his plea colloquy that he decided to shoot Trooper Toatley while returning to the car and that he continued to think about this decision while standing outside of the car. Therefore, he acted with the requisite premeditation and deliberation for first-degree murder. See United States v. Mack, 466 F.2d 333, 338 (D.C. Cir. 1972) ("[T]he law requires only that `some appreciable time' elapse during which the necessary premeditation could take place."). Appellant cannot prevail on a claim of ineffective assistance of counsel because he has not shown that: (1) counsel's performance was not "within the range of competence demanded of attorneys in criminal cases;" and (2) there is a "reasonable probability" that, but for the errors of his counsel, he "would not have pleaded guilty and would have insisted on going to trial."Hill v. Lockhart, 474 U.S. 52, 56-59 (1985). Nor has appellant shown that his right to counsel was denied when the district court replaced one of his attorneys who was not death penalty qualified with attorneys who were, or that the district court abused its discretion by not providing an evidentiary hearing. See United States v. Pollard, 959 F.2d 1011, 1031 (D.C. Cir. 1992) ("Only where the § 2255 motion raises detailed and specific factual allegations whose resolution requires information outside of the record or the judge's personal knowledge or recollection must a hearing be held.") (internal quotations omitted).
Pursuant to D.C. Circuit Rule 36, this disposition will not be published. Because no COA has been allowed, no mandate will issue.