The opinion of the court was delivered by: JAMES HOLDERMAN, District Judge
MEMORANDUM OPINION AND ORDER
DENYING CERTIFICATE OF APPEALABILITY
Noah Robinson ("Robinson") has sought to initiate an appeal from the
dismissal of his motions filed under 28 U.S.C. § 2255. His right to
appeal is governed by the requirements found at § 2253(c). Under the
provisions of that section, a certificate of appealability ("COA") may
issue only if the applicant has made a substantial showing of the denial
of a constitutional right. The United States Supreme Court in Slack v.
McDaniel, 529 U.S. 473 (2000), gave further meaning to that requirement
as it pertains to constitutional claims that were addressed on the merits
Where a district court has rejected the
constitutional claims on the merits, the showing
required to satisfy § 2253(c) is straightforward: The
petitioner must demonstrate that reasonable jurists
would find the district court's assessment of the
constitutional claim debatable or wrong.
Id. at 484.
As to district court denials on procedural grounds, the Court further
held in Slack that:
When the district court denies a habeas petition on
procedural grounds without reaching the prisoner's
underlying constitutional claim, a COA 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.
The Supreme Court in Slack also reaffirmed its long-standing position
stated in Ashwander v. TVA, 297 U.S. 288
, 347 (1936), that procedural
issues, which may be dispositive, should be resolved before any
constitutional question is addressed. Slack, 529 U.S. at 485.
In this case, Robinson filed three motions purportedly under § 2255.
His first filing, which he entitled "First Amended Motion to Vacate,
Set-Aside or Correct Conviction or Sentence Pursuant to 28 U.S.C. § 2255"
(Dkt. #1),*fn1 was mailed to this court from his place of incarceration
on October 8, 2002. The " 1-year period of limitation" of § 2255 did not
expire until October 9, 2002, which was one year after the United States
Supreme Court denied Robinson's second petition for certiorari on October
9, 2001 in Green v. United States, 534 U.S. 968 (2001). Robinson's first
motion (Dkt. #1), therefore, was timely filed. Robinson's "Second Amended
Motion" (Dkt. #17) was mailed November 27, 2002, a month-and-a-half after
the deadline, and his "Third and Final Motion" (Dkt. #16) was mailed
December 7, 2002, almost two months after his time expired. I have
considered only the issues presented in Robinson's timely-filed first
motion. I did not consider the untimely second or third motions, and I so
advised Robinson in my September 12, 2003 ruling (Dkt. #29). No jurist of
reason would find my decision not to address the motions which Robinson
filed after the § 2255 limitation period had expired on the statute of
limitations to be wrong or debatable. Rodriguez v. United States,
286 F.3d 972 (7th Cir. 2002), cert. denied, 123 U.S. 46 (2002).
In his only timely motion (Dkt. #1), Robinson raised two primary
issues: (1) ineffective assistance of his appointed appellate counsel on
Robinson's direct appeal (pages 7-30), and (2) inadequacy of the general
verdicts returned by the jury regarding the narcotics conspiracy and RICO
conspiracy counts (pages 31-40).
Turning first to Robinson's claim as to the inadequacy of the general
verdicts, Robinson contends that the concurrent life sentences he
received on Count One (RICO conspiracy under 18 U.S.C. § 1962 (d)) and on
Count Three (narcotics conspiracy under 21 U.S.C. § 846) of the second
superseding indictment were not properly supported by specific jury
findings. The Seventh Circuit, on April 3, 2001, on remand from the
Supreme Court in light of Apprendi v. New Jersey, 530 U.S. 466 (2000), in
an unpublished order which reinstated the concurrent life sentences
received by Robinson, along with sentences received by his
co-defendants, stated that:
[T]he evidence shows beyond any possible doubt that
the defendants, whose vast drug conspiracy is detailed
in the opinion that the Court remanded, United States
v. Boyd, 208 F.3d 638 (7th Cir. 2000), were
responsible for such a large quantity of drugs that
had the jury been correctly instructed, it would have
found them guilty beyond a reasonable doubt of the
offenses for which they were sentenced. We agree,
therefore, with the government's suggestion that the
original judgments be, and they hereby are,
reinstated. United States v. Jackson, 236 F.3d 886
(7th Cir. 2001) (per curiam).
United States v. Green, 6 Fed. Appx. 377, 2001 WL 338109 (7th Cir. 2001)
The record in this case fully supports the Seventh Circuit's
determination on this point in its April 3, 2001 order on remand. The
drug quantities, especially the drug quantity of cocaine, that Robinson
reasonably foresaw being distributed, as a part of and in furtherance of
the conspiracy of which Robinson was a member, were "beyond any possible
doubt," Id., substantially more than the 5 kilograms of cocaine and 1
kilogram of heroin necessary under 21 U.S.C. § 841(b)(1)(A)(i) and (ii)
for the imposition of a life sentence.
Robinson, on page 2 of "Robinson's Exhibit B" to "Defendant Robinson's
Proffer of Proof . . ." (Dkt. #60), vehemently asserts, using bold
and underlining for emphasis, that:
The Seventh Circuit's drug quantity calculation was
wrong, period, in their April 3, 2001 order after
remand from the Supreme Court only because it was
based on undetected fraudulent information.
Reasonable jurists would find the determination made in the Seventh
Circuit's April 3, 2001 order to be neither wrong nor debatable.
Robinson, in his "Exhibit B" of his "Proffer of Proof . . .," attacks
the Seventh Circuit's ruling with what he calls "[F]ive (5) sample
illustrations" which he contends "is a representative sampling of what
the Seventh Circuit mistakenly relied upon in making its drug quantity
determination." (Dkt. #60; Exhibit B, pg. 3.)
First of all, I am confident that the Seventh Circuit, in reaching the
conclusion articulated in its April 3, 2001 unpublished order, relied on
the whole 1996 retrial record, not merely the government's Circuit
Rule 54 representations. However, to determine that the correctness of the
Seventh Circuit's ruling is not debatable, I reviewed, once again, the
record with special focus on what Robinson calls his "Illustrations."
The first three of what Robinson labels in bold type to be his
"Illustrations of Circuit Rule 54, False Statements" pertain to page 5,
paragraph 8 of the "Government's Circuit Rule 54 Statement." *fn2
first of the initial three "Illustrations" of which Robinson complains is
sixth sentence and the accompanying citation contained in paragraph
8 of the Circuit Rule 54 Statement filed by the government which states:
In the mid-1980's, through Robinson's connections
alone, the El Rukns were receiving at least two
kilograms of cocaine per month. Tr. 4817-21.
The citation accompanying the government's statement is clearly a
typographical error, because the ...