United States v. Stubblefield , 931 F. Supp. 2d 118 ( 2013 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
UNITED STATES OF AMERICA )
)
v. )
) Crin1inal No. 08-171 (RCL)
MARK STUBBLEFIELD, )
) =e ~ l
Defendant. ) gm w
l m :: iii
C§g_rir, i§t.i>,i‘ii‘)'»:'s*rt\ct. ann
MEMORANDUM OPINION @H'=’\*»643 F.3d 291, 297 (D.C. Cir. 201l) ("At trial,
the govemment presented testimony from numerous witnesses to the six charged bank robberies,
each of whom described a perpetrator who resembled Stubblefield. The jury also heard that at
least one witness to each of the charged robberies had identified Stubblefield as the perpetrator
from a photo array."). Apart from the out-of``-court descriptions and identifications, the
govemment was unable to produce evidence directly linking the defendant to any of the bank
robberies. See Opp’n 10; Reply 8.
On February 13, 2009, the jury returned a verdict of guilty on all charged counts. See
Minute Entries, Feb. 13, 2009. Prior to sentencing, Judge Kennedy granted Ms. Shaner’s motion
to withdraw as counsel, and new counsel was appointed by the Federal Public Defender’s Office.
3 Ms. Shaner stated that the defendant was arrested "[a]t the request of the Bank Task Force" " based on information
from an informant to the Bank Task Force that the ‘suspect’ bank robber was located at 6“’ [sic] and Rhode Island
N.W." Id. at 1-2.
4 During trial, MPD Detective Elmer Baylor made an in-court identification of the defendant and noted that, since
his arrest, the defendant appeared to have "gained significant amount of weight and . . . is wearing glasses today, but
he wasn’t then, and it looks like his face is slightly fuller." 1/27/09 Tr. 51-52, ECF No. 72. See also Opp’n to Mot.
Recons. 11 3, ECF No. 47 ("[D]efendant has gained over 40 pounds since the date of his arrest, which represents an
approximately 40% increase in his weight since his arrest. The video provides the jury with an opportunity to see
the defendant as he appeared close to the time of the bank robberies. All of the govemment witnesses have
described the robber as very thin, slim, or a small guy.").
On September 16, 2009, Judge Henry Kennedy, Jr. sentenced Mr. Stubblefield to 180 months
imprisonment. J. & Commitment l-2, Sept. 24, 2009, ECF No. 90. This sentence fell within the
Guidelines range based on a total offense level of 30 and criminal history category of Vl. See
PSR 11 154. Mr. Stubblefield appealed on various grounds, including Speedy Trial violations and
errors that he claimed the district court made in limiting defense counsel’s closing argument and
in admitting evidence of an uncharged bank robbery. Stubblejz``eld, 643 F.3d at 292. Appellant
did not raise any matters related to his now-advanced Fourth Amendment claim, nor did he
allege ineffective assistance of his trial counsel, even though his appeal was presented by the
fourth attorney appointed by the courts The Court of Appeals affirmed Mr. Stubblefield’s
conviction, rejecting his first two arguments and finding that any error as to the evidentiary
matter was harmless in light of the government’s proof that the error "did not have a ‘substantial
and injurious effect or influence’ on the jury’s verdict." Ia'. at 292, 297 (quoting Kotteakos v.
Unized States, 328 U.S. 750, 776 (1946)).
Defendant now asks this Court to order an evidentiary hearing to determine if he received
ineffective assistance from Ms. Shaner. Def.’s 2255 Mem. 18. Defendant submits that Ms.
Shaner (1) "failed to file motion to quash indictment on the basis of lack of probable cause to
stop, seize, and search the defendant;" (2) "failed to file motion to suppress the government’s use
of a booking photograph as the ‘fruit’ of an illegal arrest;" and (3) "failed to raise in the district
court that defendant’s arrest on the minor offense was a pretext to search for evidence of bank
5 Mr. Jeffress withdrew as counsel prior to trial at the request of the defendant. See Mot. Withdraw, ECF No. 16.
Af``ter trial but prior to sentencing, Ms. Shaner withdrew as counsel at the request of the defendant. See Mot.
Withdraw, ECF No. 68; see also Def.’s Mot. Withdraw, ECF No. 67 (defendant’s request that the Court remove Ms.
Shaner as counse1). On June 6, 2009, Joanne Roney Hepworth appeared for the defendant. See Notice of
Appearance, ECF No. 81. Less than two months later, the defendant requested that the Court remove Ms.
Hepworth. See Def``.’s Mot. Withdraw, ECF No. 83. The Court then appointed Dennis Michael Hart for the
defendant to assist with defendant’s appeal. See Minute Entry for Case No. l:O8-cr-00l7l-RCL, Oct. 13, 2009.
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robber[y] that he was suspected of committing." Mot. Vacate 5, ECF No. 109. The govemment
believes the Court may dismiss the instant motion without a hearing, finding defendant’s first
claim to be "legally insupportable" and arguing the latter two claims fail because law
enforcement had probable cause to arrest defendant for the April 7 bank robbery after they
stopped him on May 12, or, altematively, that his photograph was not suppressible. See Gov’t
Opp’n 19-30.
Il. DISCUSSION
Section 2255 allows Mr. Stubblefield to move this Court to vacate his conviction "upon
the ground that the sentence was imposed in violation of the Constitution." 28 U.S.C. § 2255(a).
Tlie petitioner bears the burden of proof under § 2255 and must demonstrate his right to relief by
a preponderance of the evidence. United States v. Pollard, 602 F. Supp. 2d 165, 168 (D.D.C.
2009). As the basis of his motion, Mr. Stubblefield claims his Sixth Amendment right to counsel
was violated. While, in general, "claims not raised on direct appeal may not be raised on
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collateral review unless the petitioner shows cause and prejudice, an ineffective assistance of
counsel claim may be brought in a collateral proceeding under § 2255, whether or not the
petitioner could have raised the claim on direct appeal." Massaro v. United States, 538 U.S. 500,
504 (2003).
To succeed on his ineffective assistance of counsel claim, the defendant must show that
his "counsel’s representation fell below an objective standard of reasonableness" and that "there
is a reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 688, 694
(1984); see also United States v. Weathers, 493 F.3d 229, 234 (D.C. Cir. 2007) (stating that the
Stricklanal test controls in evaluation of ineffective assistance of counsel claims). "Failure to
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make the required showing of either deficient performance or sufficient prejudice defeats the
ineffectiveness claim." Ia'. at 700.
A showing of deficient performance requires proof "that counsel failed to act reasonably
considering all the circumstances." Cullen v. Pz``nholster, 131 S. Ct. 1388, 1403 (20ll)
(quotations and internal modifications omitted). "As a general matter, the bar of objective
reasonableness is set rather low." Um'ted States v. Hurt, 527 F.3d 1347, 1356 (D.C. Cir. 2008).
"Counsel . . . has a duty to bring to bear such skill and knowledge as will render the trial a
reliable adversarial testing process." Strickland, 466 U.S. at 688 (citing Powell v. Alabama, 287
U.S. 45, 68-69 (1932)). This Court’s review of counsel’s performance "must be highly
deferentia ," and "the court should keep in mind that counsel’s function . . . is to make the
adversarial testing process work in the particular case . . . [and] recognize that counsel is strongly
presumed to have rendered adequate assistance." Id. at 689-90. In sum, the burden on the
defendant is "obvious[ly] . . . highly demanding." Kimmelman v. Morrison, 477 U.S. 365, 382
(1986).
Deficient performance alone does not constitute ineffective assistance of counsel; the
deficiencies "must be prejudicial to the defense." Strickland, 466 U.S. at 692. Prejudice requires
that there be "a substantial, not just conceivable, likelihood of a different result." Cullen, 131 S.
Ct. at 1403. "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." Stricklana', 466 U.S. at 695. "A reasonable probability is a probability
sufficient to undermine confidence in the outcome." Ia'. at 694.
When the alleged deficiency is counsel’s failure to raise a Fourth Amendment violation,
the defendant "must show that the Fourth Amendment claim has merit and that there was a
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reasonable possibility that the verdict would have been different absent the excludable
evidence." Unitea’ States v. Wood, 879 F.2d 927, 934 (D.C. Cir. l989) (citing Kz``mmelman, 477
U.S. at 375). A defendant cannot be prejudiced by failure of his counsel "to challenge a legal
search and seizure." Ia'. (emphasis in original); see United States v. Flynn, 204 Fed. App’x 23,
24 (D.C. Cir. 2006) (finding that defendant’s ineffective assistance of counsel claim failed
because his counsel’s failure to raise his Fourth Amendment claim, which the court found to be a
lawful seizure, caused no prejudice). Finding merit in a petitioner’s Fourth Amendment claim
does not constitute per se ineffective assistance of counsel, Kimmelman, 477 U.S. at 384, and an
ineffective assistance of counsel claim will not prevail unless petitioner "proves under Strz``ckland
that they have been denied a fair trial by the gross incompetence of their attomeys." Ia’. at 382.
Here, defendant asserts three separate but overlapping grounds that all boil down to a
multi-faceted Fourth Amendment claim_that he was unlawfully stopped and searched by law
enforcement on May 12, 2008. Defendant believes that, but for this unlawful search and seizure,
"the outcome of the trial would have been different" because his booking photograph and the
eyewitness photo-array identifications that it lead to would have been suppressed, Reply 8. The
govemment maintains that law enforcement had probable cause to arrest defendant, and,
therefore, any suppression motion would have failed. See Opp’n 23-27. Alternatively, the
govemment argues that even if the defendant does make a prima facia showing of an illegal
search and seizure, his booking photograph is not suppressible. Id. 22-23.
A, A Motion T0 Quash the Indictment Would Have Been Meritless.
Defendant argues his counsel rendered ineffective assistance when she failed to file a
motion to quash the indictment on the basis of an illegal search. See Def.’s 2255 Mem. l3.
Defendant articulates a convincing basis for his Fourth Amendment claim; however, he ignores
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well settled law that states that while illegally seized evidence may be suppressed at trial, it does
not bar the prosecution all together. See Unz'ted States v. Blue, 384 U.S. 251, 255 (1966) ("So
drastic a step . . . would also increase to an intolerable degree interference with the public interest
in having the guilty brought to book."); see also Um'ted States v. Morrz``son, 449 U.S. 361, 366
(1981) ("[W]e have not suggested that searches and seizures contrary to the Fourth Amendment
warrant dismissal of the indictment. The remedy in the criminal proceeding is limited to denying
the prosecution the fruits of its transgression."); United States v. Calandra, 414 U.S. 338, 351
(1974) (refusing to extend the exclusionary rule to grand jury proceedings because "[t]he
incentive to disregard the requirement of the Fourth Amendment solely to obtain an indictment
from a grand jury is substantially negated by the inadmissibility of the illegally seized evidence
in a subsequent criminal prosecution of the search victim").
Regardless of whether defendant’s Fourth Amendment claim has merit, defendant makes
no showing that a motion to quash would have been successful. The defendant avers that
Minnesota v. Dz'ckerson, 508 U.S. 366 (1993), should instruct the Court’s analysis. Reply 4-5.
Dickerson, however, involved a suppression motion_not a motion to quash an indictment. See
id. at 369. At bottom, the Court finds defendant’s first ground insupportable and believes that
the aggregate of his three separate grounds can be addressed under the same argument: that
counsel failed to file a motion to suppress the fruit of defendant’s alleged unlawful search and
seizure,
B. Failure to File a Motion to Suppress Was Not Prejudicial Because
Defendant’s Fourth Amendment Claim Fails.
The dispositive issue here is whether a motion to suppress defendant’s booking
photograph would have succeeded, and if so, whether "there was a reasonable possibility that the
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verdict would have been different absent the excludable evidence." Wood, 879 F.2d at 934. The
Court construes the defendant’s claim to be that law enforcement lacked reasonable suspicion to
stop him, but even if the stop was lawful, police exceeded the limits of the investigatory stop
when they searched him and found the crack stem that was used to justify his arrest. See Def.’s
2255 Mem. 10-l3. Defendant alleges that "the crack cocaine stem was not detected in [his]
pocket during that search ostensibly for weapons." Id. at ll. In its opposition, the government
claims that, because law enforcement possessed probable cause to arrest the defendant for bank
robbery, defendant’s "search and apprehension was proper." Opp’n 23.6 Thus, the threshold
issue is whether defendant’s arrest on May 12 was lawful.
The govemment correctly states that if probable cause to arrest the defendant for bank
robbery existed at the time of the stop, notwithstanding the failure to communicate that to the
defendant, the seizure of drug paraphemalia would have been the result of a lawful search
incident to arrest, and defendant’s Fourth Amendment claim would fail. See Um'ted States v.
Brookhardt, 277 F.3d 558, 564 (D.C. Cir. 2002) ("[I]f a police officer arrests a defendant on a
ground that ultimately proves invalid, the arrest is nonetheless lawful if the same officer had
probable cause to arrest the defendant for a different criminal offense."). Because the Court
finds that law enforcement, after stopping the defendant on May 12, possessed probable cause to
arrest the defendant for the April 7 bank robbery, defendant’s Fourth Amendment claim fails.
(’ The govemment, additionally, argued that if the search was found to be unlawful, a motion to suppress would have
failed because the defendant’s "facial image is not suppressible" and "the police would have [inevitably] discovered
defendant’s identity." Opp’n 22-23, 28. Because the Court agrees with the govemment that probable cause existed
to arrest the defendant for bank robbery prior to the search that uncovered drug paraphema1ia, the defendant’s
additional arguments as to whether the fruits of that search are otherwise suppressible are moot and not addressed.
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l. MPD officers possessed reasonable suspicion to conduct an
investigatory stop of defendant.
Police do not need probable cause to stop a suspect thought to be involved in a completed
crime. United States v. Hensley, 469 U.S. 221, 229 (1985) ("[I]f police have a reasonable
suspicion, grounded in specific and articulable facts, that a person they encounter was involved
in or is wanted in connection with a completed felony, then a Terr_y stop may be made to
investigate that suspicion."). lndeed, investigatory stops require "considerably less than probable
cause." Unitea' States v. Davis, 235 F.3d 584, 586 (D.C. Cir. 2000).
The Court begins its analysis with the question of whether there was reasonable suspicion
to conduct an investigatory stop of the defendant, The defendant relies on Florida v. J.L., 529
U.S. 266 (2000), to argue that police lacked reasonable suspicion to stop him, See Reply 5 , 7. ln
J.L., police received an anonymous tip that "a young black male standing at a particular bus stop
and wearing a plaid shirt was carrying a gun." Id. at 268. Apart from the anonymous report, the
police had no information or reason to believe that the reported individuals were engaged in
illegal activity. Id. The police officers stopped and frisked the individual matching the
description and seized a gun from his pocket. Id. The Supreme Court held that an anonymous
tip_"from an unknown location by an unknown caller"~that an individual is carrying a gun,
without more, is not a sufficient basis to stop and frisk that person. Ia', at 268, 270.
J.L. is wholly distinguishable to the facts at bar. ln J.L., the police would not have
known about the ongoing criminal activity but for the anonymous tip. Here, law enforcement
knew a crime-the April 7 bank robbery-had been committed, the investigation of which was
ongoing at the time of the tip that led to the suspect’s apprehension. Furthermore, the tip here
was not anonymous. Prior to calling in the tip on May 12, the same citizen stated, in-person, to
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the same FBI Agent, that he knew the subject of the sketch and that the subject frequented the
area around 7“‘ Street and Florida Avenue, N.W.-the area where evidence showed the
perpetrator was dropped off following the robbery. See 12/09/08 Tr. 8 (testimony of Special
Agent De.lesus). On the date of defendant’s arrest, the informant notified the FBI that the subject
of the sketch was located at 7"‘ Street and Rhode Island Avenue, N.W., three blocks from the
area law enforcement already had reason to believe the suspect would be found.
More importantly, prior to the tip, witnesses to the April 7 bank robbery provided law
enforcement with a unique description of the bank robber, including gender, race, approximate
height, approximate age, and an unusual facial complexion. Thus, because law enforcement
received a tip from an individual known to them from a previous face-to-face encounter and
which was in response to-and corroborated with-an ongoing criminal investigation seeking a
particularly described individual, the police had reasonable suspicion that the identified
individual was connected to past criminal activity. See Uniteal States v. Davis, 235 F.3d 584,
587-88 (D.C. Cir. 2000) (finding that police officers, aimed with descriptions of a criminal
suspect relayed from police channels and by a 911-caller, had reasonable suspicion to stop an
individual matching the described suspect’s clothing, location, and race); cf Unitea’ States v.
Thompson, 234 F.3d 725, 729 (D.C. Cir. 2000) (finding that a face-to-face tip, made after the
tipster "just saw" a man carrying a gun, bore greater indicia of reliability compared to the
anonymous tip in J.L.).
2. Reasonable suspicion ripened into probable cause upon
apprehension of the defendant,
Circumstances arising during the course of a lawful stop may cause reasonable suspicion
to ripen into probable cause. Rice v. District of Columbia, 774 F. Supp. 2d 18, 23 (D.D.C. 201 l).
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"Whether the police have probable cause for an arrest is determined by viewing the totality of the
circumstances from the perspective of a prudent police officer and in light of the police officer’s
training and experience." Um``ted States v. Catlett, 97 F.3d 565, 573 (D.C. Cir. 1996) (citing
Illz'nois v. Gates, 462 U.S. 213, 230-32 (1983)). "Probable cause to arrest exists where ‘the facts
and circumstances’ within a law enforcement officer’s knowledge are ‘sufficient to warrant a
prudent [person] in believing that [the suspects] had committed or [were] committing an
offense."’ United States v. Gilliam, 167 F.3d 628, 633 (D.C. Cir. 1999) (quoting Beck v. Ohio,
379 U.S. 89, 91 (l964)). Probable cause is a "‘common sense’ deterrnination, which turns on the
‘practical considerations of everyday life."’ Id. (quoting Illinois v. Gates, 462 U.S. 213, 231
(l 983)). "While each fact standing alone may be insufficient, the combination of all of the facts
can establish probable cause, and certain conduct that may appear ‘innocent to a lay person may
have entirely different significance to an experienced [law enforcement] officer."’ Id. (quoting
Catlett, 97 F.3d at 573-74) (intemal citations omitted). In evaluating probable cause, the Court
may give "due weight to inferences drawn from the evidence by law enforcement officers." Ia'.
(quoting Ornelas v. Unitea' States, 517 U.S. 690, 699 (1996)).
The issue of whether probable cause existed to arrest the defendant was reviewed by
Judge Kay during Mr. Stubblefield’s preliminary post-arrest detention hearing on May 16, 2008.
There, Judge Kay found the following circumstances were sufficient to establish probable cause
for the defendant’s arrest for bank robbery: (1) defendant’s apprehension in the immediate
vicinity of the known location where the bank robber was dropped off following the April 7 bank
robbery; (2) defendant’s race, gender, age, height, and facial complexion all matched witness
descriptions of the perpetrator; (3) defendant’s act of distorting his facial appearance during
police attempts to photograph him; and (4) photo-array identification of the defendant as the
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perpetrator by one of the bank robbery witnesses. The issue before the Court is whether the
totality of the facts and circumstances known to law enforcement leading up to and during the
May 12 apprehension_prior to the discovery of drug paraphernalia, which established
independent probable cause supporting an arrest for PDP_were sufficient to warrant a prudent
police officer to believe that Mr. Stubblefield committed the April 7 bank robbery and thus
provide probable cause for his arrest and a lawfiil search incident to arrest. See Gilliam, 167
F.3d at 633. The Court finds they were.
ln Smz'th v. United Stazes, the D.C. Circuit held that the correct test for evaluating
probable cause is "whether a warrant if sought could have been obtained by law enforcement
agency application which disclosed its corporate information, not whether any one particular
officer could have obtained it on what information he individually possessed." 358 F.2d 833,
837 (D.C. Cir. 1966). After receiving information that a subject sought in connection with recent
bank robberies was spotted in a specific location, MPD officers responded to the location
reported by the informant 12/09/08 Tr. 12. Although the responding MPD officers that arrested
the defendant were not members of the joint FBI/MPD task force investigating the crimes, the
evaluation of probable cause to. arrest the defendant encompasses the collective knowledge of the
task force investigation team with the observations of the responding MPD officers, See Unitea'
States v. Hawkz'ns, 595 F.2d 75l, 752-53 n.2 (D.C. Cir. 1978) ("[P]robable cause may emanate
from the collective knowledge of the police, though the officer who performs the act of arresting
or searching may be far less inforined.").
ln addition to the particularized knowledge regarding the robbery suspect and the
corroborated information provided by the informant, the Court may consider the defendant’s
actions in response to the approaching police officers, See In re Sealed Case 96-3167, 153 F.3d
18759, 765 (D.C. Cir. 1998) (finding that defendant’s f1ight, in addition to other incriminating
circumstances, weighed in favor of establishing probable cause); see also United States v.
Dotson, 49 F.3d 227, 231 (6th Cir. 1995) (finding that the defendant’s attempt to flee from a self-
identified police officer was a circumstance sufficient to convert ex ante reasonable suspicion
into ex post facto probable cause) (citing, inter alia, Unilea' States v. Sharpe, 470 U.S. 675, 706
(1985) (Brennan, J. dissenting) (stating that flight in response to the presence of authorities can
give rise to probable cause when coupled with pre-existing reasonable suspicion)); Rice, 774 F.
Supp. 2d at 23-24 (finding that when defendant disobeyed a police officer’s command to
"freeze" during a lawful stop, the defendant committed the crime of resisting and opposing a
police officer, which provided probable cause for his arrest); Unitea' States v. McFadden, 722 F.
Supp. 807, 809-10 (D.D.C. 1989) ("[l]f there already exists a significant degree of suspicion
concerning a particular person, the flight of that individual upon the approach of the police may
be taken into account and may well elevate the pre-existing suspicion up to the requisite Fourth
Amendment level of probable cause.").
Here, police found the defendant, who was recognized by the FBI informant as the
subject of the witness-corroborated sketch of the perpetrator, in the immediate vicinity of the last
known location of the bank robber. Defendant fled when he was approached by MPD officers.7
He provided a name that did not match the name the informant overheard. After police detained
the defendant, following his flight, they were able to corroborate the unique descriptors of the
suspect_gender, age, height, race, and, most importantly in the Court’s eyes, his unique facial
7 The evidence of flight in the record comes from the affidavit of Special Agent DeJesus. Defendant alleges that he
did not flee but rather coincidentally walked down an alley "to relieve himself" as the police followed him. Reply 7.
The Court finds defendant’s clarification suspicious, particularly since it was presented not in his Motion and
supporting memorandum but only after argument by the govemment that flight can be considered as a factor
weighing in favor of finding probable cause. The Court believes the evidence warrants a finding that the defendant
fled. See Gz``lliam 167 F.3d at 633.
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complexion. The Court believes that, at thai time, given the totality of the circumstances,
probable cause existed to arrest the defendant for the April 7 bank robbery. See United Sz‘ates v.
Carpenter, 342 F.3d 812, 814~15 (7th Cir. 2003) (finding probable cause to arrest defendant due
to his match with the suspected bank robber’s age, race, height, and the same "unusual" pants
worn during the robbery, along with his presence with two other men who fit a general
description of additional robbers, and furtive actions observed by police).
Having probable cause to arrest Mr. Stubblefield for the April 7 bank robbery, the
subsequent search that produced drug paraphemalia was not unlawful, and thus, the failure to file
a motion to suppress caused no prejudice, Wood, 879 F.2d at 933. Additionally, defendant’s
claim that his arrest for PDP was pretextual also fails for the same reasons. Brookhardt, 277
F.3d 558, 564.
C. An Evidentiary Hearing ls Not Required
"A judge need not conduct an evidentiary hearing before denying a petition for relief
under § 2255 when ‘the motion and the files and records of the case conclusively show that the
prisoner is entitled to no relief."’ Unitea’ States v. Morrison, 98 F.3d 619, 625 (D.C. Cir. 1996)
(quoting 28 U.S.C. § 2255). The Court finds the record in this case conclusively shows that the
defendant is not entitled to relief, and thus, will dismiss the motion without a hearing.
III. CERTIFICATE OF APPEALABILITY
A petitioner must obtain a certificate of appealability ("COA") before pursuing any
appeal from a final order in a § 2255 proceeding. See 28 U.S.C. § 2253(c)(l)(B). When the
denial of a § 2255 motion is based on the merits of the claims in the motion, a district court
should issue a certificate of appealability only when the appeal presents a "substantial showing
of the denial of a constitutional right." 28 U.S.C. § 2253(0)(2). ln Slack v. McDaniel, the
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Supreme Court stated that when a district court rejects the constitutional claims on the merits,
"[t]he petitioner must demonstrate that reasonable jurists would find the district court‘s
assessment of the constitutional claims debatable or wrong." 529 U.S. 473, 483 (2000).
Because the defendant has not made a substantial showing of the denial of a
constitutional right, and because the Court finds that reasonable jurists would not find the
Court’s assessments of his constitutional claims debatable or wrong, the Court declines to issue a
certificate of appealability.
IV. CONCLUSION
Because the defendant was lawfully arrested on May 12, 2008, the Court concludes that
Ms. Shaner’s failure to file a motion to quash the indictment or a motion to suppress evidence
resulted in no prejudice to defendant’s case. Thus, defendant’s Motion must be denied. A
separate Order consistent with this Memorandum Opinion shall issue this date.
Signed by Royce C. Lamberth, Chief Judge, on March/_ ?2013.
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