CLARENCE WASHINGTON v. UNITED STATES OF AMERICA (2024)

ORDER DENYING MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE AND RELATED MOTIONS

Petitioner Clarence Washington pled guilty to drug and firearm charges and failure to appear for a court proceeding. He was sentenced to 440 months' imprisonment. He seeks post-conviction relief pursuant to 28 U.S.C. § 2255 on the basis of: (a) ineffective assistance of counsel; (b) alleged errors in the calculation of drug quantities attributed to him at sentencing; (c) other alleged errors in the calculation of his Sentencing Guidelines range; and (d) the alleged substantive unreasonableness of his sentence. The Court DENIES Washington's motion because his arguments are either procedurally defaulted, contradicted by the record, or otherwise insufficient to justify post-conviction relief.

I. BACKGROUND.

A. Procedural Background.

On June 20, 2018, Washington was charged with three offenses: possession of cocaine base with intent to distribute (Count 1); possession of a firearm in furtherance of a drug trafficking offense (Count 2); and felon in possession of a firearm (Count 3). (Crim. Dkt.¹ ECF 2.) All three offenses arose out of an incident on January 31, 2018. (Id.) Assistant Federal Public Defender Terence McAtee was appointed to represent Washington. (Crim. Dkt. ECF 9; Crim. Dkt. ECF 13.) On July 5, 2018, Washington was released from detention on conditions, one of which was that he wear a location monitoring device. (Crim. Dkt. ECF 20.)

On October 19, 2018, McAtee filed two motions to suppress on Washington's behalf: one seeking to exclude evidence of statements made by Washington during questioning on January 31, 2018, based on alleged Fifth Amendment violations (Crim. Dkt. ECF 35), and the other seeking to exclude evidence seized from Washington's residence, person, and vehicles on the same date based on alleged Fourth Amendment violations (Crim. Dkt. ECF 36). McAtee prepared and filed briefs in support of each motion (Crim. Dkt. ECF 35-1; Crim. Dkt. ECF 36-1), and the Court (Jarvey, C.J.) held an evidentiary hearing on November 7, 2018 (Crim. Dkt. ECF 42). At the end of the hearing, Judge Jarvey orally denied both motions to suppress. (Id.; see also Crim. Dkt. ECF 182.) On the Fifth Amendment issues, Judge Jarvey concluded that Washington knowingly waived his Miranda rights and his statements were voluntary and not coerced. (Crim. Dkt. ECF 182, pp. 49–50.) On the Fourth Amendment issues, Judge Jarvey concluded: (i) Washington's wife knowingly and voluntarily provided consent to search their residence; and (ii) the searches of Washington's person and vehicle were the result of valid warrants supported by probable cause. (Id., pp. 50–51.) Judge Jarvey further concluded that officers acted in good faith in executing the warrant, and thus the good faith exception to the exclusionary rule would apply even if probable cause did not exist. (Id., p. 51.)

The Court set a change of plea hearing for February 14, 2019. (Crim. Dkt. ECF 62.) The day before the hearing, however, the United States Probation Office requested an emergency arrest warrant based on Washington allegedly tampering with his location monitoring device and failing to appear for a scheduled meeting with his pretrial services officer. (Crim. Dkt. ECF 64; Crim. Dkt. ECF 66.) Washington also failed to appear for the change of plea hearing. (Crim. Dkt. ECF 66, p. 2.) Washington ended up on fugitive status, and the Court was forced to continue his trial indefinitely. (Crim. Dkt. ECF 67.)

Washington was finally arrested on February 24, 2021. (Crim. Dkt. ECF 71.) On March 10, 2021, the grand jury returned a Superseding Indictment charging him with seven offenses. (Crim. Dkt. ECF 84.) Counts 1 and 2 were the same as the first two counts of the original Indictment and charged Washington with possession of cocaine base with intent to distribute and possession of a firearm in furtherance of a drug trafficking crime, respectively. (Crim. Dkt. ECF 84, pp. 1, 2.) Count 3 charged Washington with Failure to Appear for his trial on February 25, 2019. (Id., p. 2.) Count 4 charged him with conspiracy to distribute cocaine base beginning no later than March 1, 2020, and ending February 18, 2021. (Id., p. 3.) Count 5 charged him with possession with intent to distribute cocaine base on February 18, 2021. (Id.) Count 6 charged him with using, carrying, brandishing, and discharging a firearm in furtherance of a drug trafficking crime on February 18, 2021. (Id., p. 4.) Count 7 charged him with being a drug user in possession of a firearm on the same date. (Id.) Finally, the Superseding Indictment included a notice of the Government's intent to seek an enhanced penalty under 18 U.S.C. § 3147 based on Washington's alleged commission of the offenses charged in Counts 3, 4, 5, 6, and 7 while on pretrial release. (Id., p. 5.) The new charges arose, in part, out of an incident on February 18, 2021, in which Washington fired shots at law enforcement officers who were attempting to arrest him. (Crim. Dkt. ECF 163, ¶ 49.)

On May 21, 2021, McAtee filed another motion to suppress on Washington's behalf, this time alleging Fourth Amendment violations relating to traffic stops and the use of a GPS device. (Crim. Dkt. ECF 97.) In a separate motion filed the same day, McAtee asked the Court to sever Counts 1 and 2 (both of which arose out of the incident on January 31, 2018) from Counts 3 through 7 (all of which were based on conduct occurring months or years after the initial charges). (Crim. Dkt. ECF 96.) Judge Jarvey denied the motion to sever. (Crim. Dkt. ECF 121.) Separately, United States Magistrate Judge Stephen B. Jackson recommended that Judge Jarvey grant in part and deny in part the motion to suppress. (Crim. Dkt. ECF 122.) McAtee filed a timely objection to the unfavorable portions of Judge Jackson's report and recommendation (Crim. Dkt. ECF 126), but Judge Jarvey overruled those objections in an Order dated October 7, 2021 (Crim. Dkt. ECF 135). On October 8, 2021, McAtee moved to withdraw as counsel “due to a breakdown of attorney/client relationship.” (Crim. Dkt. ECF 136.) Judge Jarvey denied the motion to withdraw a few days later following a hearing. (Crim. Dkt. ECF 140.)

B. Change of Plea Hearing.

On October 25, 2021, Washington pled guilty in open court to Counts 1, 2, 3, 5, and 6 of the Superseding Indictment pursuant to a written Plea Agreement. (Crim. Dkt. ECF 146; Crim. Dkt. ECF 147.) The Plea Agreement preserved Washington's right to appeal one of the adverse suppression rulings. (Crim. Dkt. ECF 146, ¶ 27.) The Plea Agreement identified the maximum penalties for each of Counts 1, 2, 3, 5, and 6, as well as the following mandatory minimum penalties: five years on Count 1; five years on Count 2; and ten years on Count 6. (Id., ¶ 3.) The Plea Agreement stated that the Court would have the authority to make the sentences on each count consecutive to one another. (Id.) It also stated that the penalties on Counts 2, 3, and 6 had to be imposed consecutive to sentences on the other counts. (Id., ¶ 4.) The Plea Agreement further stated that “the final sentence, including the application of the Sentencing Guidelines and any upward or downward departures, is within the sole discretion of the sentencing judge ․ Any estimate of the possible sentence to be imposed, by a defense attorney or the Government, is only a prediction, and not a promise, and is not binding.” (Id., ¶ 17.) Further: “Defendant understands that Defendant will have no right to withdraw Defendant's plea if the sentence imposed, or the application of the Sentencing Guidelines, is other than what Defendant anticipated, or if the sentencing judge declines to follow the parties' recommendations.” (Id., ¶ 18.) The Plea Agreement also contained a waiver of Washington's right to seek post-conviction review except on grounds of ineffective assistance of counsel or prosecutorial misconduct. (Id., ¶ 27.)

During the change of plea hearing, Judge Jackson placed Washington under oath and engaged in a thorough colloquy to make sure he understood his rights and the consequences of his plea. (Crim. Dkt. ECF 183.) Relatively early in the hearing, Judge Jackson asked whether Washington was satisfied with McAtee's representation. (Id., p. 10.) Washington said he was. (Id.) In Washington's words, “[w]e had some misunderstandings, but I think we seeing eye to eye now.” (Id.)

Judge Jackson outlined for Washington the maximum and mandatory minimum penalties applicable to each count, as well as explaining the concept of “consecutive” penalties and the fact that the penalties in Counts 2, 3, and 6 had to run consecutively. (Id., pp. 13–16.) Judge Jackson told Washington he faced up to life in prison. (Id., p. 16.) Washington said he understood the mandatory minimum and maximum penalties. (Id., p. 18.)

Judge Jackson asked McAtee whether he provided Washington with advice regarding the potential range of punishment Washington would face under the Sentencing Guidelines. (Id., p. 20.) McAtee said he had but noted that the application of the Guidelines was “complicated in this case because ․ some of the charges have mandatory minimums and then others have guideline issues and some of them the mandatory minimums become the guidelines, so it is quite complicated, but yes, we have thoroughly discussed all of those issues.” (Id., pp. 20–21.) After agreeing that the application of the Guidelines would be complicated, Judge Jackson engaged in the following colloquy with Washington:

THE COURT: ․ Mr. Washington, I want to make sure that you understand, however, that the punishment is for Judge Jarvey to decide, and it might be different than what Mr. McAtee has predicted for you. Do you understand that?

THE DEFENDANT: Yes.

THE COURT: Do you also understand you cannot withdraw your guilty pleas simply because you sentence might be different than what has been predicted for you?

THE DEFENDANT: Yes.

(Id., p. 21.) Later, Washington confirmed that he read and understood his written Plea Agreement before signing it. (Id., pp. 25–27.) He also admitted to a factual basis for each of the charges to which he was pleading guilty (id., pp. 28–31) and confirmed his awareness that he was giving up the right to seek post-conviction relief, subject to narrow exceptions (id., pp. 34–35). After agreeing that he was acting in a knowing and voluntary fashion, free of coercion, Washington formally entered guilty pleas to Counts 1, 2, 3, 5, and 6. (Id., pp. 37–38.) Judge Jackson entered a report and recommendation recommending that Judge Jarvey accept the plea. (Crim. Dkt. ECF 149.) No objections were filed, and Judge Jarvey adopted the report and recommendation two weeks later. (Crim. Dkt. ECF 151.)

C. Sentencing Hearing.

Washington was sentenced on February 16, 2022. (Crim. Dkt. ECF 169.) The Presentence Investigation Report (“PSR”) calculated Total Offense Level 40 and Criminal History Category I, producing an advisory Guidelines range of 292 to 365 months, plus 180 months to be served consecutively. (Crim. Dkt. ECF 163, ¶ 161.) McAtee challenged the drug quantities in the PSR, as well as the application of the six-level enhancement under USSG § 3A1.2 for an official victim. (Crim. Dkt. ECF 181, pp. 2–4, 15.) McAtee argued the enhancement should be three levels, not six. (Id., p. 4.) McAtee also urged the Court to vary downward from the Sentencing Guidelines to reflect arguable double-counting in the interplay between the mandatory ten-year penalty on Count 6 pursuant to 18 U.S.C. § 924(c) and the six-level enhancement under USSG § 3A1.2 for the offense involving an official victim. (Id., pp. 22–23.)

Judge Jarvey imposed a below-Guidelines sentence of 440 months, consisting of 200 months on Count 1 (concurrent), 60 months on Count 2 (consecutive), 60 months on Count 3 (consecutive), 200 months on Count 5 (concurrent), and 120 months on Count 6 (consecutive). (Id., p. 33.) In explaining the grounds for his sentence, Judge Jarvey acknowledged “the extent to which some of the enhancements and the mandatory minimums punish the same behavior.” (Id., p. 32.) Judge Jarvey was heavily influenced by the severity of the offense conduct in imposing the sentence, telling Washington: “you're in a class of your own when it comes to the behavior that is the subject of these convictions.” (Id., p. 33.)

D. Appeal.

On appeal, Washington challenged the denial of his motion to suppress, the drug quantity calculation, and the substantive reasonableness of his sentence. See generally United States v. Washington, No. 22-1440, 2022 WL 17347879 (8th Cir. Dec. 1, 2022) (per curiam). He also argued ineffective assistance of counsel. See id. The Eighth Circuit refused to consider the ineffective assistance of counsel claim but rejected Washington's remaining arguments. See id.

E. 2255 Petition.

On November 20, 2023, Washington filed a motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255. (2255 Dkt. ECF 1.) He raised four grounds. Ground One alleged ineffective assistance of counsel relating to the motion to suppress and sentencing hearings. (Id., p. 4.) More specifically, Washington asserts that McAtee did not argue the “right objection” during the suppression and sentencing hearings. (Id., p. 4.) He also asserts that McAtee misled him about his sentencing exposure and did not let him review discovery. (Id.) Finally, Washington complains that Judge Jarvey did not grant his request for new counsel.

In Ground Two, Washington complains about the drug quantity attributed to him at sentencing and makes an apparent reference to the EQUAL Act, which is legislation considered—but not enacted—by Congress that would eliminate sentencing disparities between crack and powder cocaine. (Id., pp. 5–6.) In Ground Three, Washington complains about double-counting in his Sentencing Guidelines calculation, including “[t]wo obstruction of justice enhancements for the same charge,” the overlap between the mandatory ten-year penalty on the § 924(c) charge and six-level enhancement for official victim, and the interplay between Count 3 (failure to appear) and the enhancement under 18 U.S.C. § 3147 for crimes committed while on pretrial release. (Id., p. 7.) Finally, in Ground Four, Washington asserts that his sentence was substantively unreasonable based on the inclusion of “ghost dope” and the fact that he did not plead guilty to the conspiracy charge. (Id., pp. 8–9.) Washington later filed a motion to amend his § 2255 petition alleging that he was sentenced for acquitted conduct when conspiracy-related drug quantities were included in the Sentencing Guidelines calculation even though he did not plead guilty to conspiracy. (2255 Dkt. ECF 5, p. 1.) He also argues that Judge Jarvey did not appropriately split his sentence on the failure to appear charge (Count 3). (Id., p. 2.) Washington asks for an evidentiary hearing. (Id.)

II. LEGAL STANDARDS.

“Under 28 U.S.C. § 2255 a defendant in federal custody may seek post conviction relief on the ground that his sentence was imposed in the absence of jurisdiction or in violation of the Constitution or laws of the United States, was in excess of the maximum authorized by law, or is otherwise subject to collateral attack.” Watson v. United States, 493 F.3d 960, 963 (8th Cir. 2007). However, “Section 2255 relief is not available to correct errors which could have been raised at trial or on direct appeal, absent a showing of cause and prejudice ․ or a showing that the alleged errors were fundamental defects resulting in a complete miscarriage of justice.” Ramey v. United States, 8 F.3d 1313, 1314 (8th Cir. 1993) (per curiam) (citing United States v. Frady, 456 U.S. 152, 167–68 (1982) and United States v. Smith, 843 F.2d 1148, 1139 (8th Cir. 1988) (per curiam)). Proving actual innocence is one way for a defendant to obtain post-conviction despite procedural default. See Dejan v. United States, 208 F.3d 682, 685–86 (8th Cir. 2000).

A showing of ineffective assistance of counsel also typically “satisfies both cause and prejudice.” United States v. Apfel, 97 F.3d 1074, 1076 (8th Cir. 1996). The Sixth Amendment guarantees a criminal defendant's right to “effective assistance of counsel.” Strickland v. Washington, 466 U.S. 668, 686 (1984). “Generally, to be successful on a claim of ineffective assistance of counsel, a defendant must ‘show both deficient performance by counsel and prejudice to the defense caused by that performance.’ ” Thomas v. United States, 737 F.3d 1202, 1207 (8th Cir. 2013) (quoting Barger v. United States, 204 F.3d 1180, 1181 (8th Cir. 2000)). “Deficiency means that counsel's performance fell below an objective standard of reasonableness, and prejudice means that, but for counsel's errors, a reasonable probability exists that the result of the sentencing would have been different.” Deltoro-Aguilera v. United States, 625 F.3d 434, 437 (8th Cir. 2010). “The defendant bears the burden to overcome the strong presumption that counsel's performance was reasonable.” Thomas, 737 F.3d at 1207. “However, strategic choices made due to a lack of preparation or investigation are not protected by the same presumption.” Id. “An attorney is not incompetent in exercising reasonable professional judgment even when, in hindsight, the decision may have been a mistake.” Id. “But, an attorney must conduct more than a cursory investigation.” Id.

“Evidentiary hearings on 28 U.S.C. § 2255 motions are preferred, and the general rule is that a hearing is necessary prior to the motion's disposition if a factual dispute exists.” Thomas, 737 F.3d at 1206. “The district court is not permitted to make a credibility determination on the affidavits alone; thus if the decision turns on credibility, the district court must conduct a hearing.” Id. “An evidentiary hearing may be denied, however, if the motion, files, and records of the case conclusively show that the movant is not entitled to relief.” Id.

III. LEGAL ANALYSIS.

A. The Record Conclusively Shows that Washington Has Failed to Establish Ineffective Assistance of Counsel Warranting Post-Conviction Relief.

The record conclusively shows that McAtee's representation of Washington was not deficient and/or that any deficiency did not result in prejudice. As it relates to McAtee's alleged failure to provide appropriate guidance about the potential length of Washington's sentence, for example, the record shows that Washington was informed both in writing and open court that any estimate made by McAtee regarding the length of Washington's sentence was only a “prediction,” not a promise. Washington confirmed his awareness of the same and said he understood he could not withdraw his guilty plea even if the sentence ended up being different than he expected. Washington's § 2255 motion essentially seeks to “take back” what he said under oath during the change of plea proceeding. He is not permitted to do this. See Thompson v. United States, 872 F.3d 560, 566 (8th Cir. 2017) (“[A] defendant's representations during the plea-taking ․ pose a formidable barrier in any subsequent collateral proceedings.”); Burch v. United States, No. 4:16-CV-00674-AGF, 2019 WL 4750258, at *7 (E.D. Mo. Sept. 30, 2019) (denying post-conviction relief where defendant's allegations were contradicted by his statements during plea colloquy). Moreover, Washington does not claim that McAtee's allegedly faulty advice impacted his decision to plead guilty; instead, he simply does not like his sentence. Post-conviction relief is not available in these circumstances. See Matthews v. United States, 114 F.3d 112, 114 (8th Cir. 1997) (no basis for post-conviction relief unless movant establishes “reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial” (quoting Hill v. Lockhart, 474 U.S. 52, 59 (1985))).

Washington's complaints about McAtee's handling of the suppression motions are also without merit. The record shows that McAtee filed three separate motions to suppress, each of which he supported with detailed legal and factual arguments. While Washington argues that McAtee failed to make the “right objections,” he does not explain what those objections are or why they would have been successful. Nor can the Court conceive of any objection or argument that would have been successful. The factual record on the motions to suppress was straightforward, and the simple reality is that the motions were largely without merit, as concluded by a unanimous panel of the Eighth Circuit on review of lower court rulings by Judge Jarvey and Judge Jackson. Washington is not entitled to post-conviction relief in these circumstances. See Lewis v. United States, No. 09-3416-CV-S-GAF-P, 2010 WL 1489727, at *4 (W.D. Mo. Apr. 13, 2010) (“No claim for ineffective assistance of counsel exists where counsel fails to address a meritless issue having no bearing on the outcome of the case.”).

Washington is likewise not entitled to relief based on his argument that McAtee should have done a better job at sentencing. Although Washington complains about the impact “double-counting” had on his sentence, the record shows that McAtee raised that issue and Judge Jarvey considered it. The fact that Judge Jarvey did not vary downward from the Sentencing Guidelines range as much as Washington would have liked does not mean McAtee was ineffective. See United States v. Herrera Machaca, No. CR121181JRTLIB, 2017 WL 3189862, at *3 (D. Minn. July 26, 2017) (denying motion for post-conviction relief where record showed defense counsel performed effectively). Thus, again, there is no basis for post-conviction relief. See id.

B. Washington's Remaining Grounds Are Procedurally Defaulted and/or Without Merit.

In Ground Two and his motion to amend, Washington complains about the calculation of drug quantity at sentencing, in part through reference to the Eliminating a Quantifiably Unjust Application of the Law (“EQUAL”) Act and proposed legislation addressing whether acquitted conduct may be considered at sentencing. The problem for Washington is threefold. First, Congress has not enacted the EQUAL Act or a law prohibiting consideration of acquitted conduct at sentencing, and the Court cannot grant § 2255 relief on the basis of potential legislation.

Second, as it relates to drug quantity, Judge Jarvey followed well-established law by attributing drug quantities to Washington for sentencing purposes beyond the quantities specifically at issue in the individual counts of conviction. See, e.g., United States v. White, 447 F.3d 1029, 1032 (8th Cir. 2006) (“It is well-established that conduct related to a dismissed count may be relevant conduct for purposes of USSG § 1B1.3.”) There is no basis for post-conviction relief in a situation where the sentencing judge correctly applied governing law. Indeed, even if Congress had passed a law prohibiting courts from considering acquitted conduct, it is doubtful that such a law would prohibit consideration of drug quantities associated with charges the Government voluntarily chose to dismiss as part of a plea agreement, particularly when those additional quantities are “part of the same course of conduct or common scheme or plan as the offense of conviction.” USSG § 1B1.3(a)(2).

Third, to the extent not based on new legislation, Washington's arguments about drug quantity are procedurally barred because he unsuccessfully raised them on direct appeal. See Washington, 2022 WL 17347879, at *1–2. “Claims which were raised and decided on direct appeal cannot be relitigated on a motion to vacate pursuant to 28 U.S.C. § 2255.” Davis v. United States, 673 F.3d 849, 852 (8th Cir. 2012). For these reasons, Washington's complaints in Ground Two about the drug quantity calculation cannot give rise to post-conviction relief.

Grounds Three (double-counting of enhancements) and Four (substantive reasonableness) also fail. Ground Three is procedurally barred because Washington did not raise it on direct appeal, and “a petitioner may not raise an issue before the district court for the first time in a § 2255 motion if the issue was not presented on direct appeal from the conviction.” Jennings v. United States, 696 F.3d 759, 762 (8th Cir. 2012). The only exception is when a petitioner establishes cause for the failure to raise the issue on direct appeal and prejudice resulting therefrom. See id. at 763. Washington cannot establish either here because McAtee raised “double-counting” at sentencing, and Judge Jarvey acknowledged it as a factor in his decision to impose a below-Guidelines sentence.

Ground Four fails because the Eighth Circuit rejected Washington's argument about the substantive reasonableness of his sentence on direct appeal, and Washington cannot relitigate that issue on a motion for post-conviction relief. See Davis, 673 F.3d at 852.

Washington's only remaining argument is found in his amended pleading, which asserts that Judge Jarvey improperly failed to “split” the sentence relating to his failure to appear. (2255 Dkt. ECF 5, p. 2.) According to Washington, the sentence “should have been 140 [months] for the drugs and 60 month[s] for the [failure to appear.]” (Id.) As best as the Court can tell, Washington is focusing on the interplay between his 200-month sentence on Count 5 (which charged possession with intent to distribute cocaine base on a date when Washington was on pretrial release) and his sixty-month consecutive sentence on Count 3 (which charged failure to appear). According to Washington, the two penalties should have been 200 months total; i.e., 140 months on Count 5 plus sixty months on Count 3.

This argument is procedurally defaulted for the same reason as many of Washington's other arguments; namely, his failure to raise it on direct appeal. See Jennings, 696 F.3d at 762. The argument is also irrelevant because Judge Jarvey also sentenced Washington to 200 months on Count 1, which was based on drug distribution occurring before Washington was on pretrial release. The sixty-month sentence on Count 3 (which appears to be the focus of Washington's argument) had to be imposed consecutively to the 200-month sentence on Count 1. See 18 U.S.C. § 3147. Thus, even if Judge Jarvey mistakenly imposed a 200-month sentence on Count 5—which is highly doubtful—the total sentence would have stayed the same anyway. Post-conviction relief is not available in these circumstances. See Valdivia-Perez v. United States, No. C08-4006-MWB, 2009 WL 4049586, at *6 (N.D. Iowa Nov. 17, 2009) (denying motion for post-conviction relief where defendant failed to show reasonable probability of different sentence).

C. Washington Is Not Entitled to an Evidentiary Hearing.

Because the record conclusively shows that Washington is not entitled to relief, there are no credibility determinations for the Court to make, nor is there any other need for an evidentiary hearing. See Buster v. United States, 447 F.3d 1130, 1132 (8th Cir. 2006) (holding that an evidentiary hearing is not required if the petitioner's allegations are contradicted by the record or would not warrant relief even if true).

IV. CONCLUSION.

The Court GRANTS Washington's motion to amend (2255 Dkt. ECF 5) and has considered the arguments set forth in his amended pleading. The Court DENIES Washington's motion to vacate, set aside, or correct sentence (2255 Dkt. ECF 1) because neither his original pleading nor the amendments have established any viable basis for post-conviction relief. The Court further concludes that Washington has failed to make a “substantial showing of the denial of a constitutional right,” 28 U.S.C. § 2253(c)(2), and has not shown that the issues raised in his motion for post-conviction relief “are debatable among reasonable jurists” or otherwise “deserve further proceedings,” Flieger v. Delo, 16 F.3d 878, 882–83 (8th Cir. 1994). Washington has similarly failed to show that that “jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” See Slack v. McDaniel, 529 U.S. 473, 484 (2000). The Court therefore declines to grant a Certificate of Appealability.

Washington also moves to proceed in forma pauperis. (2255 Dkt. ECF 3.) There is no filing fee for section 2255 petitions, and thus his request is DENIED AS MOOT.

IT IS SO ORDERED.

Dated this 10th day of September, 2024.

FOOTNOTES

1.   All references to “Crim. Dkt.” are to the electronic case filing (ECF) docket in Washington's underlying criminal case, Case No. 3:18-cr-00064 (S.D. Iowa). All references to “2255 Dkt.” are to the electronic case filing docket in this post-conviction review case, Case No. 4:23-cv-00458 (S.D. Iowa).

Stephen H. Locher UNITED STATES DISTRICT JUDGE