United States v. Ashton ( 2013 )

UN!TED sTATEs DISTRICT CoURT § l L E D
FoR THE nlsrmcr oF CoLUMBIA
APR t a 2913
) d . - 'r‘~'- ’ t- d
UNITEI) STATES oF AMERICA ) f"‘?§“§;\§i;,.$p"t§'§$§“$§r§“
)
v. ) 925
) Criminal No. 90-27-(}1
MICHELLE ASHToN, )
)
Defendant. )
)
MEMoRANDUM oPlNloN
Before the Court is defendant Michelle Ashton’s Motion [120] to Vacate Sentence
pursuant to 28 U.S.C. § 2255. Defendant claims that her Sixth Amendment right to a jury trial
was violated when the trial judge instructed the jury that the question of materiality was a matter
for the court to determine. Defendant moves the Court to vacate her convictions and sentence.
Upon consideration of the Motion [120], defendant’s Memorandum of Points and Authorities in
Support of Motion [139], the government’s Opposition [146], the entire record herein, and the
applicable law, defendant’s Motion will be DENIED.
I. BACKGROUND
A. Defendant’s Underlying Offensesl
Defendant created the corporation Data Management, Inc. ("ADM") in Washington,
D.C., in the early 1980s. United Stales v. Dale, 991 F.2d 819, 826 (D.C. Cir. 1993). ADM
eventually obtained a contract to sell computers to the United States Army and thereafter
expanded into Europe and Asia. [a’. One of ADM’s employees, David Bowers, left the company
in 1987 after secretly taping telephone conversations between himself and defendant. Id.
Bowers subsequently assisted a government investigation of ADM’s operations that led to
1 See United Slates v. Dale, 991 F.Zd 819, 826-31 (D.C. Cir. 1993) for a more detailed explanation of the facts
underlying defendant’s convictions.
defendant’s indictment and conviction. Ial. Defendant’s conviction was based on her fraudulent
tax treatment of various financial transactions involving ADM’s Asian and European operations
and on certain alleged misrepresentations or nondisclosures on government forms completed by
defendant and her co-defendant, David Dale. Id.
B. Procedural History
Defendant was indicted in 1990 on seven counts related to conspiracy, tax, and fraud
offenses.z Presentence investigation Report ("PSR") lc, 1111 l-2, Sept. 28, 1990. Defendant was
convicted on all counts after a jury trial. PSR 'll 3. ln 1991, the district court sentenced defendant
to 37 months imprisonment for the conspiracy conviction and concurrent 130-month terms for
each of the remaining convictions. Am. J. & Commitment Order 1~2, July 18, l99l. The D.C.
Circuit affirmed all of defendant’s convictions but remanded the case to the district court for
resentencing on a merger of convictions issue.3 Dale, 991 F.2d at 858-59. In response to the
D.C. Circuit’s holding, the district court vacated Count Three‘l and re-sentenced defendant to
concurrent terms of six months for each of the remaining counts. Am. J. & Commitment Order
(Resentencing), June 6, 1996.
2 Specifically, the counts were as follows: (1) Conspiracy in violation of 18 U.S.C. § 371 ("Count One"); (2) Aiding
and Assisting in the Preparation of a False and Fraudulent tax Return in violation of 26 U.S.C. § 7206(2) ("Count
Three"); (3) Attempted Tax Evasion and Aiding & Abetting in violation of 26 U.S.C. § 7201 and 18 U.S.C. § 2
("Count Four"); (4) Wire Fraud and Aiding & Abetting in violation of 18 U.S.C. §§ 2, 1343 ("Count Five"); (5) two
counts of Concealing Facts by Trick, Scheme, and Artifice and Aiding & Abetting in violation of 18 U.S.C. §§ 2,
1001 ("Counts Six and Eight"); and (6) making False Statements and Aiding & Abetting in violation of 18 U.S.C.
§§ 2, 1001 ("Count Ten"). Presentence investigation Report ("PSR") lc, 2, Sept. 28, 1990.
3 Defendant argued on appeal that her conviction under 26 U.S.C. § 7206 (Count Three) merged with her conviction
under 26 U.S.C. § 7201 (Count Four) because both of the IRS counts "rest[ed] on the same two [tax] deductions."
Dale, 991 F.2d at 85 8. The D.C. Circuit agreed with defendant, explaining that "under appropriate circumstances,
lesser section 7206 offenses merge with the ‘capst0ne’ prohibition of section 720l. Id. One of those "appropriate
circumstances" was "‘where proof of willfully attempted evasion under § 7201 also proves, as an incident to the
willful evasz``on, the preparing and subscribing of a fraudulent retum, the specific form of fraudulent conduct merges
in the inclusive fraud charged under § 720l."’ Id. (citation omitted). The court instructed the district court "to
vacate the sentences for the section 7206 offenses and to resentence defendants pursuant to the section 7201
convictions." Id. at 859.
4 Aiding and Assisting in the Preparation and Presentation of a False and Fraudulent Tax Return in violation of 26
U.S.C, § 7206(2).
Defendant filed a timely Motion to Vacate Sentence pursuant to 28 U.S.C. § 2255 on
June 27, 1997,5 claiming several constitutional violations. Def.’s M. 1, 4~6, ECF No. 120. The
Court never acted on the Motion. In 2002, defendant liled a supplement to her Motion in which
she dropped all claims except one: a violation of her Sixth Amendment right to a jury trial.
Def.’s Mem. l, ECF No. 139, Oct. 21, 2002. Defendant claims that she was denied a jury trial
because the trial judge instructed the jury that the question of materiality was a question of law
for the court to determine. The government opposes defendant’s motion on the ground that the
motion is procedurally barred. Gov.’s Opp’n l, ECF No, 146.
II. LEGAL STANDARD
A. 2255 Motion
A motion under 18 U.S.C. § 2255 allows federal prisoners to collaterally attack an
otherwise final sentence if the sentence was (1) imposed in violation of the Constitution or laws
of the United States; (2) the court was without jurisdiction to impose the sentence; (3) the
sentence was in excess of the maximum authorized by law; or (4) the sentence is otherwise
subject to collateral attack. §2255(a). The petitioner bears the burden of proof under § 2255 and
must demonstrate her right to relief by a preponderance of the evidence. United Smles v.
Pollard, 602 F. Supp. 2d l65, 168 (D.D.C. 2009). Relief under § 2255 is an extraordinary
remedy in light of society’s legitimate interest in the finality of judgments. United Sz‘ates v.
Zakas, 793 F. Supp. 2d 77, 79~80 (D.D.C. 2011). Thus, a collateral attack under § 2255 is
neither a second chance at appeal nor is it a substitute for direct appeal; a defendant is therefore
required to show "a good deal more than would be sufficient on a direct appeal" to gain
5 The judgment on resentencing was entered on the docket on June 17, 1996, and no appeal was taken, See Am. J. &
Commitment Order (Resentencing), June 6, 1996. The convictions accordingly became final ten business days later
on July 1, 1997, pursuant to the then-applicable Federal Rules of Appellate Procedure 4(b) and 26(a)(2). See United
States v. She/zon, 539 F. Supp. 2d 259, 266-67 & n.9 (D.D.C. 2008) (citing Fed. R. App. P. 4(b), 26(a)(2); Clay v.
United States, 537 U.S. 522, 527-31 (2003)). The time to appeal under § 2255(f) did not expire until July l, 1997.
collateral relief. United Stales v. Pollard, 959 F.2d 1011, 1020 (D.C. Cir. 1992); United Stales v.
Frady, 456 U.S. 152, 166 (1982) ("To obtain collateral reliefl,] a prisoner must clear a
significantly higher hurdle than would exist on direct appeal."). A district court may deny a §
2255 motion without a hearing when "the motion and files and records of the case conclusively
show that the prisoner is entitled to no relief." United States v. Morrz’son, 98 F.3d 619, 625 (D.C.
Cir. l996).
B. Cause & Prejudice Requirement for Claims Not Raised on Direct Appeal
Generally, claims not raised on direct appeal may not be raised on collateral review.
Massaro v. United Staz‘es, 538 U.S. 500, 504 (2003). The procedural-default rule is neither a
statutory nor a constitutional requirement, but it is a doctrine adhered to by the courts to conserve
judicial resources and to respect the law’s important interest in the finality of judgments. Id. If a
defendant failed to contemporaneously object to a claimed trial error or if a defendant failed to
raise the claim on direct review, the claim may be raised on collateral review only if the
defendant can first demonstrate either that the defendant is "actually innocent" or that there is
sufficient "cause" excusing her double procedural default as well as "actual prejudice" resulting
from the errors of which she complains. United States v. Frady, 456 U.S. 152, 167~68 (1982);
United States v. Pez‘tigrew, 346 F.3d 1139, 1144 (D.C. Cir. 2003) (citations omitted).
C. Sixth Amendment Right to a Jury Trial
The Sixth Amendment’s right to a jury trial "gives a criminal defendant the right to
demand that a jury find him guilty of all the elements of the crime with which he is charged."
United Stales v. Gaudz``n, 515 U.S. 506, 511 (l995). However, in criminal cases, as in civil cases,
the jury does not have the power to determine pure questions of law and a court is "permitted to
instruct the jury on the law and insist that the jury follow his instructions." See id at 513 (citing
Sparfv. United States, 156 U.S. 51, 105-06 (1895)). Prior to 1995, the "unanimous verdict of
the federal courts" was to consider "materiality"é_even when it was an element of a charged
crime-as a question of law for the court’s determination rather than the jtuy’s. United States v.
Briclges', 717 F.2d 1444, 1448 (D.C. Cir. 1983); see also United States v. Paxson, 861 F.2d 730(D.C. Cir. 1988) (rejecting a criminal defendant’s Sixth Amendment challenge of a court’s
determination of materiality in his jury trial); Sinclair v. United States, 279 U.S. 263, 298 (1929)
("[T]he materiality of what is falsely sworn, when an element in the crime of perjury, is one for
the court."). However, in 1995, the Supreme Court disrupted that uniform practice in Gauclin by
holding that the Sixth Amendment requires the issue of materiality to be determined by a jury
when materiality is an element of the charged crime. Gaudz``n, 515 U.S. at 522-23. The Court
found that because materiality requires some findings of fact, materiality is not a pure question of
law and neither tradition nor stare decisis justified the continued application of an
unconstitutional practice. Ia'. at 512-13, 518-23.
Gaudin was decided on June 19, 1995_two years after the D.C. Circuit remanded
defendant’s appeal but before the district court resentenced defendant in 1996. See Gauclin, 515
U.S. at 506; Dale, 991 F.2d at 859; Am. J. & Commitment Order (Resentencing), June 6, 1996.
The Supreme Court has held that Gauclin applies retroactively when a defendant’s case was "not
yet final" at the time Gaudz``n was decided. johnson v. United States, 520 U.S. 461, 467 (l997).
Because defendant was still awaiting resentencing when the Supreme Court decided Gaudin,
defendant’s case was "not yet final," and Gaudz'n applies to defendant’s case.
6 The two statutes under which defendant was convicted, 26 U.S.C. 7206(1}-(2) and 18 U.S.C. 1001, require as an
element of the crime that the false statements made by defendant be "material." The statutes do not define
"material," but the Supreme Court has held that "in general, a false statement is material if it has ‘a natural tendency
to influence, or [is] capable of influencing, the decision of the decisionmaking body to which it was addressed."’
Neder v. United States, 527 U.S. l, 16 (1999) (citing United States v. Gaudin, 515 U.S. 506, 509 (1995)).
III. DISCUSSION
A. Preservation of Claim for Collateral Review
Defendant claims, as the basis for her § 2255 Motion, a violation of her Sixth
Amendment right to a jury trial due to the trial court’s determination that materiality was a
question of law to be determined by the court rather than a finding of fact to be determined by
the jury.7 Def.’s Mem. 1. However, the govemment claims that because defendant failed to
preserve her claim at trial and on direct appeal, she must first establish the requisite "cause" and
"prejudice" before the Court can properly entertain her Motion. Gov.’s Opp’n 5-6. Defendant
argues that she properly preserved her claim at trial, claiming that "defendants did object during
the conference on jury instructions" to the trial court’s "proposed explicit instruction that
materiality had been proven" on the identified counts. Def.’s Mem. 12~13 (citing 7/13/90 Tr. at
3878-79). However, the defense did not object to the court’s decision to determine materiality
as a matter of law, Def.’s Mem. 13, but rather to the court’s wording of the proposed instruction
for the sole purpose of preventing the defendant from being prejudiced in the minds of the jury:
Mr. Spaeder [Defense Counscl]: Assuming that Your Honor were to . . . rule as a
matter of law that the omissions charged in Counts 6 through 10 are material, it
would be the defendants’ position that in instructing the jury the language Your
Honor should use is that the issue of materiality is one for the Court to decide, and
you are not charged with making a decision on the issue of materiality in this
case, without suggesting to the jury what Your Honor’s ruling is with respect to
materiality.
To tell the jury that you have determined as a matter of law that the
omission were material, 1 think sends a very grave judicial signal to the jury that
somehow the Court has cast its imprimatur on one of the essential elements of the
offense . . . as long as as [sic] we can get a formulation which does not appear to
tilt Your Honor’s message to the jury one way or the other.
7 Regarding materiality, the trial court instructed the jury as follows:
Now, Ladies and Gentleman, with regard to the matter of materiality referred to in counts 2, 3, 6,
7, 8, 9, and 10 in the indictment, 1 hereby instruct you that these matters are material, However,
you are still required to consider every element of those offenses. Should you find that the
govemment has failed to prove any of the other elements of any of those offenses beyond a
reasonable doubt, then you must find the defendants not guilty of that count.
Tr. 4546~47, July 19, 1990.
Obviously, the jury will not be asked to render a judgment on materiality.
Tr, 3878~80, July 13, 1990.
Because defendant "did not object to [the court’s] withholding [of] the element of
materiality from the jury," defendant did not preserve her current claim at trial. Fed. R. Crim. P.
30; see also Johnson, 520 U.S. at 465'66 (noting that Fed. R. Crim. P. 30 "is simply the
666
embodiment of the ‘familiar’ principle that a right may be forfeited in criminal as well as civil
cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to
determine it"’) (citations omitted). Defendant also failed to raise her present claim on direct
appeal, That failure alone requires defendant to satisfy the "cause and prejudice" or "actual
innocence" standard in order for this court to consider defendant’s collateral l\/Iotion.g Frady,
456 U.S at 167. As defendant has not professed actual innocence, she must show both (1)
"cause" excusing her double procedural default and (2) "actual prejudice" resulting from the
errors of which she complains. Pettigrew, 346 F.3d at 1144. Defendant has failed to show
either.
8 Though defendant argues that she could not have raised the materiality issue at trial or on direct appeal because
Gaudin had not yet been decided, such a c1aim, even if true, does not suddenly turn defendant’s collateral challenge
into a direct a review. See Frady, 456 U.S. at 166-68.
The retroactive application of Gaudin to defendant’s case would allow a "plain error" review on direct
appeal, as that is the effect of Gaudin’s retroactivity. See, e.g., Johnson v. United States, 520 U.S. 461, 466-67
(1997) (Supreme Court applying the "plain error" standard to a retroactive application of Gaudin when reviewing a
direct appeal). However, because defendant’s motion is a collateral challenge rather than a direct appeal, the Court
must j”irst establish that defendant satisfies the cause-and-prejudice standard before the Court may consider whether
defendant’s claimed error, though procedurally forfeited, may nonetheless be remedied under the "plain error"
doctrine of Rule 52(b) of the Federal Rules of Criminal Procedure. See United States v. Olano, 507 U.S. 725, 732
(1993).
ln sum, because defendant brings a collateral challenge and did not raise her present claim on direct
appeal, she must j?rst satisfy the cause-and-prejudice standard regardless of her reason for failing to raise the claim
on direct appeal. Frady, 456 U.S. at 166»68. Defendant’s inability to raise a claim on direct appeal, as she claims,
is properly dealt with and considered by the "cause" prong of the cause-and-prejudice standard and, if cause is
satisfied, thereafter by the "plain error" standard See, e.g., id. at 168 n.l6; Olano, 507 U.S. at 732.
B. Prejudice
To establish "actual prejudice," defendant "must shoulder the burden of showing, not
merely that the errors at [her] trial created a possibility of prejudice, but that they worked to [her]
actual and substantial disadvantage, infecting [her] entire trial with error of constitutional
dimensions." Pettigrew, 346 F.3d at 1144 (citing Frady, 456 U.S. at l70). Defendant must at
least demonstrate that "there is a reasonable probability that, but for [the errors], the result of the
proceeding would have been different." Ia'. (citing United States v. Dale, 140 F.3d 1054, 1056
n.3 (D.C. Cir. 1998) (quoting Striclcland v. Washington, 466 U.S 668, 694 (1984)). The showing
4
of prejudice required to overcome procedural default on collateral review "is significantly
greater than that necessary’ to establish plain error on direct review." ]d. (citations omitted).
The facts of defendant’s case are similar to the facts in Johnson. In Johnson, the
defendant-appellant was convicted, before Gaudin was decided, of a crime of which materiality
was an element and failed to object to the jury instructions that made materiality a question for
the court rather than for the jury. 520 U.S. at 463. However, unlike the present case, the
defendant-appellant in Johnson raised the Gaudin issue on direct appeal as a "plain error." Id.
The Supreme Court, considering whether or not the jury instruction constituted "plain error,"
held that it did not because the "evidence supporting materiality was ‘overwhelming"’ and
because the issue of materiality was "essentially uncontroverted at trial" and "remained so on
appeal." Id. at 469~70 (citations omitted).g Though the standard for determining "prejudice" for
9 The Supreme Court went on to note that there was "no basis for concluding that the error ‘seriously affect[ed] the
fairness, integrity or public reputation of judicial proceedings,’” and noted that it would be the reversal of the
conviction, rather, that would have such an effect, as "‘[r]eversal for error, regardless of its effect on the judgment,
encourages litigants to abuse thc judicial process and bestirs the public to ridicule it."’ Johnson, 520 U.S. at 470.
The Supreme Court also explained that a failure to submit materiality to the jury is not a "structural error"
that avoids harmless-error review, but rather an error in the trial process that is subject to harmless-error review
similar to that of a mistake in instructing the jury on an element of the charged offense. Id. at 469. The Court
ultimately did not make a finding as to whether or not the jury instruction "affected [the defendant’s] substantial
entertaining collateral claims is different than the standard for plain error, the standard for
determining prejudice in this context is a more stringent standard. Pettigrew, 346 F.3d at 1144-
45 (citing Murray v. Carrier, 477 U.S. 668, 694 (1984)); id. at 1145 n. 13 ("[A] prisoner must, at
a minimum, satisfy all of the requirements of the plain error standard in order to succeed in a
collateral attack.").
l~lere, each justification used by the Supreme Court to find a lack of "plain error" is
present in defendant’s case: the "evidence supporting materiality was ‘overwhelming,"’ and the
issue of materiality was "essentially uncontroverted at trial" and "remained so on appeal," and
defendant has "presented no plausible argument" that the statements for which she was convicted
were not material. See Johnson, 520 U.S. at 469-70; see also Dale, 140 F.3d at 1057 (D.C.
Circuit concluding the same thing with regard to one of defendant’s codefendant’s collateral
challenge of the materiality determination). Defendant did not object to the issue of materiality
at trial and did not raise the issue on direct appeal, Though the law in the D.C. Circuit was
settled on the issue, such an objection was not so novel that defendant did not have the "tools to
construct [her] constitutional challenge."lo Engle v. Isaac, 456 U.S. l07, 132~34 (1982)
("Where the basis of a constitutional claim is available, and other defense counsel have
perceived and litigated that claim, the demands of comity and finality counsel against labeling
rights" because the Court found that the defendant’s claim did not "seriously affect[] the fairness, integrity or public
reputation of judicial proceedings~the final requirement for plain error. Id. at 469-70.
‘° see united states v. random 111 F.3d 432 (erh Cir. 1997) (noting that by the early 19905, “a crack m the ‘waii of
authority’ that materiality was an issue for the judge to decide had begun to appear" and that, therefore, "an
objection to a materiality instruction . . . would not necessarily have been futile."); see, e.g., United States v. Taylor,
693 F. Supp. 828 (N.D. Cal. l988) (holding that the issue of materiality was one for the jury); United States v.
Valdez, 594 F.2d 725 (9th Cir. 1979) (holding that materiality, if an essential element of a charged crime, must be
determined by the jury "as with all of the other elements of the offense charged"), abrogated on other grounds by
United States v. Gaudin, 997 F.2d 1267 (9th Cir. 1993), a/j"a' in part and rev 'd on other grounds on reh 'g, 28 F.3d
943 (9th Cir. 1994) (en banc), ajf'd, 515 U.S. 506 (1995); People v. Hedgecoclc, 51 Cal.?)d 395, 399 (Cal. 1990)
(holding that materiality is an issue for the jury); Grizzle v. Guarantee [ns. Co., 602 F.. Supp. 445, 467 (N.D. Ga
1984) (noting that, under Georgie law, issue of materiality was normally for the jury); cf United States v. Voorhees,
593 F.2d 346 (8 th Cir, 1979 (holding that the "jury was properly instructed" on the issue of materiality); see also
Jefj``ries v. Econoniical Life Ins.Co., 89 U.S. 47 (1874) (holding that materiality was a "fact for the jury").
alleged unawareness of the objection as cause for a procedural default."). Regarding the
evidence of materiality at trial, defense counsel in the present case did not dispute proof of
materiality at all and in fact stated: "Obviously, the jury will not be asked to render a judgment
of materiality." In Johnson, the defendant’s counsel actually did argue at trial that "the element
of materiality has been insufficiently proven and . . . the Court ought to grant a judgment of
acquittal;" yet the Supreme Court found that, despite defense counsel’s statement, "[m]ateriality
was essentially uncontroverted at trial." ld. at 470.
Additionally, the D.C. Circuit Court considered one of defendant’s co-defendant’s exact
same Sixth Amendment collateral claim regarding the jury instruction on materiality and
dismissed his claim for lack of prejudice without deciding the "eause" prong. United States v.
Dale, 140 F.3d 1054, 1056-57 (D.C. Cir. 1998). The Circuit Court explained:
Dale has suggested no facts or theory to rebut the district judge’s legal conclusion
that the charged nondisclosures were material to the Department’s decision
whether to grant clearance. . . . In the absence of any basis for finding Dale’s
misrepresentations were not material, we cannot say that the judge’s failure to
submit materiality to the jury "worked to [Dale’s] actual and substantial
disadvantage." The failure therefore was not prej udicial.
Defendant in the present case has also failed to provide the Court with "any basis" upon which to
find that materiality was not established by "overwhelming evidence." See Gov.’s Opp’n 14.
See generally Def.’s Mem. in Supp. of M. to Vacate Sentence, Oct. 21, 2002, ECF No. 139.
Thus, the Court finds that defendant has not proven the requisite prejudice for her
collateral claims to be considered. Because defendant must prove both prejudice and cause in
order to have her present claims considered, this Court does not need to determine whether or not
defendant can show the requisite "cause." Finally, defendant’s motion does not require a
" Defendant points out that the element of materiality was contested in pretrial motions, which were denied by the
district court. See United States v. Dale, 782 F. Supp. 615, 625-26 (D.D.C. 1991). However, such challenges to
materiality in pretrial motions do not show that materiality continued to be controverted at trial.
10
hearing, as her claim is procedurally barred because she has failed to show the requisite
prejudice to overcome her procedural default. See Morrison, 98 F.3d at 625.
IV. CERTIFICATE OF APPEALABILITY
A petitioner must obtain a certificate of appealability before pursuing any appeal from a
final order in § 2255 proceeding See 28 U.S.C. § 2255(c)(l)(B). When the denial of a § 2255
motion is based on the merits of the claims, 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. § 2255(c)(2). The petitioner is required to show that reasonable
jurists could debate whether the issues should have been resolved differently or are "adequate to
deserve encouragement to proceed further." Slack v. McDaniel, 529 U.S. 473, 483 (2000)
(quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (l983), superseded on other grounds by 28
U.S.C. § 2253(0)(2)); see also Mendez v. Knowles, 556 F.3d 757, 771 (9th Cir. 2009).
Furthermore, the Supreme Court has stated:
When the district court denies a habeas petition on procedural grounds without
reaching the prisoner’s underlying constitutional claim, a [Certificate of
Appealability] should issue when the prisoner shows, at least, 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.
Slack, 529 U.S. at 484. Such a showing can be made when precedent clearly demonstrates that
courts have come to divergent conclusions based on analogous facts. Because defendant has not
made a substantial showing of the denial of a constitutional right, and because the Court finds
that reasonable jurists would not debate the denial of petitioner’s motion, the Court declines to
issue a certificate of appealability See, e.g., Dale, 140 F.3d at 1056-57 (D.C. Circuit finding
same claim as defendant’s procedurally barred due to lack of requisite prejudice based on facts
analogous, if not the same, to defendant’s case).
ll
V. CONCLUSION
Defendant has failed to show the requisite prejudice for this court to properly consider the
collateral claims in defendant’s Motion on which defendant procedurally defaulted. Thus,
defendant’s Motion is DENIED.
A separate Order consistent with this Memorandum Opinion shall issue this date.
Signed by Royce C. Lamberth, Chief Judge, on April §6_, 2013.