                                UNITED STATES DISTRICT COURT
                                FOR THE DISTRICT OF COLUMBIA


                                                         )
UNITED STATES OF AMERICA                                 )
                                                         )
                 Respondent,                             )
                                                         )
        v.                                               )    Criminal No. 89-36 (RCL)
                                                         )
MICHAEL PALMER                                           )
                                                         )
                Petitioner.                              )
                                                         )


                                       MEMORANDUM OPINION

        Petitioner Michael Palmer has moved for a certificate of appealability (“COA”) to enable

him to appeal parts of this Court’s September 26, 2012 opinion granting in part and denying in

part his motion pursuant to 28 U.S.C. § 2255. Pet’r’s Request, ECF No. 400. The Court will

DENY Mr. Palmer’s motion, and will not issue a certificate of appealability.

I.      BACKGROUND 1

        Mr. Palmer was convicted on numerous firearm and narcotics offenses. See United

States v. Palmer, 89-cr-36, 2012 WL 4380554, at *1–3 (D.D.C. Sept. 26, 2012). After his

conviction was affirmed on appeal, see United States v. Harris, 959 F.2d 246 (D.C. Cir.), cert.

denied, 506 U.S. 933 (1992), Mr. Palmer made numerous postconviction filings. These were

resolved by this Court’s 2012 opinion, granting in part and denying in part Mr. Palmer’s updated

§ 2255 motion. See generally Palmer, 2012 WL 4380554.




1
 The Court only summarizes the facts essential to the matter at hand. For a complete factual and procedural
background, see United States v. Palmer, 89-cr-36, 2012 WL 4380554, *1–4 (D.D.C. Sept. 26, 2012).
II.    LEGAL STANDARD

       “[A]n appeal may not be taken to the court of appeals from . . . the final order in a

proceeding under section 2255” unless “a circuit justice or judge issues a certificate of

appealability.” 28 U.S.C. § 2253(c)(1)(B). Such a certificate may issue “only if the applicant

has made a substantial showing of the denial of a constitutional right.” Id. § 2253(c)(2). The

Supreme Court has explained that a petitioner satisfies this standard where he 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 v. McDaniel, 529 U.S. 473, 478 (2000).

III.   ANALYSIS

       Mr. Palmer now seeks a COA as to three issues decided in that opinion. The Court will

deny this request.

       A. Rutledge Claim

       The Court partially granted Mr. Palmer’s claim under Rutledge v. United States, 517 U.S.

292, 300 (1996). Palmer, 2012 WL 4380554 at *8. The government conceded that under that

decision, Mr. Palmer’s convictions for both conspiracy and continuing criminal enterprise

(“CCE”) could not both stand where the conspiracy was itself a lesser included offense in the

CCE conviction. Id. The Court agreed. Noting that the Supreme Court in Rutledge appeared to

leave the question of which of the two convictions should be vacated open, the Court followed

the “usual practice” of dismissing the lesser included offense, the conspiracy conviction, and

leaving the more serious offense, CCE, to stand. Id.

        Mr. Palmer seeks leave to appeal from this decision because, “[u]nlike all of the cases

cited by the court . . . in this case the government used the now-vacated conspiracy charge as



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one of the ‘series of violations’ that is required for a CCE conviction.” Pet’r’s Request 3; see

also id.at 4-5 (“This unusual circumstance did not exist in the cases relied on by the Court as

‘standard practice.’”). This is not accurate. In Rutledge itself, the conspiracy was one of the

predicate offenses for the CCE conviction. See 517 U.S. at 295 n.2; see also Rutledge v. United

States, 22 F. Supp. 2d 871, 874 (C.D. Ill. 1998) (noting that on remand from the Supreme Court,

the District Court dismissed the conspiracy charge, and kept the CCE charge). And, in United

States v. Miller, the Second Circuit expressly held that “[a] lesser included § 846 conspiracy may

serve as a predicate offense for a § 848 CCE conviction.” 116 F.3d 641, 678 (2d Cir. 1997).

Both of these cases were relied on in the Court’s opinion. Palmer, 2012 WL 4380554 at *8. In

light of these precedents, the Court finds that “jurists of reason” would not find it debatable

whether the Court was within its discretion under Rutledge in dismissing the conspiracy

conviction rather than the CCE conviction in this case. See Slack, 529 U.S. at 478. Accordingly,

the Court will not issue a certificate of appealability for this claim.

        B. Ineffective Assistance of Counsel Claims

        Mr. Palmer also seeks leave to appeal from the Court’s dismissal, on procedural grounds,

of his ineffective assistance of counsel (“IAC”) claims based on certain jury instructions and

proof offered at trial. Pet’r’s Request 7–11. The Court will deny this request because, even

assuming that these claims were timely filed, “jurists of reason would [not] find it debatable

whether the petition states a valid claim of the denial of a constitutional right.” See Slack, 529

U.S. at 478.

        To prevail on a claim of IAC, a defendant must establish (1) that counsel's performance

was deficient—that is, that counsel “made errors so serious that counsel was not functioning as

the ‘counsel’ guaranteed by the Sixth Amendment,” and (2) that counsel’s “deficient



                                                   3
performance prejudiced the defense.” Strickland v. Washington, 466 U.S. 668, 687 (1984). To

establish that counsel’s deficient performance prejudiced the defense, the defendant must show

that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of

the proceeding would have been different.” Id. at 694. “A reasonable probability is a probability

sufficient to undermine confidence in the outcome.” Id.

       As the Court noted in dismissing Mr. Palmer’s other IAC claims on the merits,

       This Court need not decide whether the[] failures [alleged by Mr. Palmer] fell
       below an “objective standard of reasonableness” because [he] has failed to show
       “a reasonable probability that, but for counsel’s unprofessional errors, the result
       of the proceeding would have been different.” Strickland, 466 U.S. at 694. As
       Judge Greene remarked in Palmer’s sentencing hearing, “[i]n the 25 years . . . that
       I have been on the bench, I have seldom, if ever, seen a case in which the
       evidence was as overwhelming as it was in this case . . . and particularly [as to]
       the guilt of Mr. Palmer.” Transcript of Sentencing, at 7. Even if petitioner’s trial
       counsel had pursued these lines of inquiry in trial, petitioner has failed to
       demonstrate a “reasonable probability” that the outcome of the trial would have
       been different, in light of the “overwhelming” evidence against Mr. Palmer.

Palmer, 2012 WL 4380554 at *17. Because the same reasoning applies to the IAC claims

addressed here, Mr. Palmer has failed to make a “substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c)(2). The Court will not issue a COA for these claims.

       C. Law of the Case Doctrine

       Finally, Mr. Palmer argues that the Court violated the law of the case doctrine by

applying timeliness requirements to claims covered by Judge Urbina’s 2003 order consolidating

his previous motions. Pet’r’s Request 11–15. Judge Urbina’s order dismissed Mr. Palmer’s

numerous pending § 2255 motions without prejudice and ordered him to file a single

consolidated motion. See Order, Sept. 10, 2003, ECF No. 216; see also Palmer, 2012 WL

4380554 at *4. The order reads, in full:

       In order to manage this case in a manner consistent with the highest quality of
       justice, it is this 9th day of September, 2003,

                                                 4
       ORDERED that the petitioner’s motions [#89, #198] to vacate, set aside or correct
       sentence and supplemental submission are DISMISSED without prejudice; and it
       is

       FURTHER ORDERED that the petitioner shall have until December 10, 2003 to
       file a consolidated motion to vacate, set aside or correct sentence that incorporates
       only those arguments set forth in the petitioner’s submissions # 89, #170, #185
       and # 198. The respondent may file an opposition no later than February 10, 2004,
       with the petitioner’s reply due no later than April 10, 2004.

       SO ORDERED.

Order, ECF No. 216.

       The Court finds that the order does not bear the legal weight that Mr. Palmer would have

it do. Rather, it is, as the government suggests, merely a “housekeeping” measure. Resp’t’s

Opp’n 8. It contains no analysis of time limits or procedural hurdles, much less any discussion

suggesting that these requirements would be waived. Thus, reasonable jurists would not find it

debatable that the order does not impliedly waive any procedural or timeliness requirements for

the claims raised in the motions it discusses. See Slack, 529 U.S. at 478. The Court will not

issue a COA for these claims.

IV.    CONCLUSION

       For the foregoing reasons, the Court will DENY Mr. Palmer’s motion for a COA. An

order shall issue with this opinion.

       Signed by Royce C. Lamberth, Chief Judge, on February 14, 2013.




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