         09-2010-cr
         United States v. Jackson


                                   UNITED STATES COURT OF APPEALS
                                       FOR THE SECOND CIRCUIT

                                                 SUMMARY ORDER

R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT . C ITATION TO A SUMMARY ORDER FILED ON OR AFTER J ANUARY 1,
2007, IS PERMITTED AND IS GOVERNED BY F EDERAL R ULE OF A PPELLATE P ROCEDURE 32.1 AND THIS COURT ’ S L OCAL R ULE 32.1.1.
W HEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT , A PARTY MUST CITE EITHER THE F EDERAL A PPENDIX OR AN
ELECTRONIC DATABASE ( WITH THE NOTATION “ SUMMARY ORDER ”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL .




 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 16 th day of March, two thousand ten.
 5
 6       PRESENT: PIERRE N. LEVAL,
 7                ROBERT D. SACK,
 8                RICHARD C. WESLEY,
 9                         Circuit Judges.
10
11
12       UNITED STATES OF AMERICA,
13
14                                       Appellee,
15
16                       -v.-                                                   09-2010-cr
17
18       KASHAWN JACKSON,
19
20                                       Defendant-Appellant. *
21
22
23       FOR APPELLANT:                  RICHARD I. ROSENKRANZ, Law Office of
24                                       Richard I. Rosenkranz, Brooklyn, New
25                                       York.
26
27       FOR APPELLEE:                   WILLIAM P. CAMPOS, Assistant United
28                                       States Attorney, Of Counsel (David C.
29                                       James, Assistant United States Attorney,


                 *
                 The Clerk of the Court is respectfully directed to amend the official
         caption in this action as set forth above.
 1                     Of Counsel, on the brief), for Benton J.
 2                     Campbell, United States Attorney, United
 3                     States Attorneys Office for the Eastern
 4                     District of New York, Central Islip, New
 5                     York.
 6
 7        Appeal from a judgment of the United States District
 8   Court for the Eastern District of New York (Platt, J.).
 9
10       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

11   AND DECREED that appellant’s motion for a certificate of

12   appealability is DENIED and his appeal is DISMISSED.

13       Appellant, Kashawn Jackson, appeals from an April 30,

14   2009 order of the United States District Court for the

15   Eastern District of New York, denying his petition under 28

16   U.S.C. § 2255 and his motion under 18 U.S.C. § 3582(c)(2).

17   On May 9, 2005, Jackson pled guilty to possession with

18   intent to distribute five or more grams of cocaine base in

19   violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B).     On

20   October 21, 2005, the court sentenced Jackson principally to

21   a ten-year term of imprisonment, to be followed by eight

22   years of supervised release.    On direct appeal, this Court

23   affirmed the judgment of conviction and the sentence entered

24   in the district court.   United States v. Jackson, 504 F.3d

25   250 (2d Cir. 2007) (per curiam).     We assume the parties’

26   familiarity with the underlying facts, the procedural

27   history, and the issues presented for review.

                                    -2-
1        When no express request for a certificate of

2    appealability is filed, this Court may exercise its

3    discretion to construe a notice of appeal as constituting

4    such a request.   See, e.g., Smith v. Duncan, 411 F.3d 340,

5    346 (2d Cir. 2005).   However, “there is no need to grant a

6    certificate of appealability for the purpose of determining

7    whether to grant a certificate of appealability.”     Eltayib

8    v. United States, 294 F.3d 397, 398 n.2 (2d Cir. 2002).

9    When, as in this case, it is clear that the applicant has

10   not “made a substantial showing of the denial of a

11   constitutional right,” 28 U.S.C. § 2253(c)(2), the

12   certificate should be denied and the appeal should be

13   dismissed.   See Contino v. United States, 535 F.3d 124, 127-

14   28 (2d Cir. 2008).

15       Appellant may not use the vehicle of a petition brought

16   pursuant to § 2255 to “relitigate questions which were

17   raised and considered on direct appeal.”     United States v.

18   Pitcher, 559 F.3d 120, 123 (2d Cir. 2009) (internal

19   quotation marks omitted) (per curiam).     Appellant filed a

20   pro se supplemental brief in his direct appeal to this Court

21   in which he raised an ineffective assistance of counsel

22   claim based on his attorney’s allegedly deficient


                                  -3-
1    performance at the time of his sentencing.      This Court

2    rejected appellant’s pro se arguments as meritless.

3    Jackson, 504 F.3d at 253-54.      In any event, appellant has

4    not met his burden of demonstrating that his former-

5    counsel’s representation at the sentencing proceeding “fell

6    below an objective standard of reasonableness.”      Strickland

7    v. Washington, 466 U.S. 668, 688 (1984).      Nor can he prove

8    that “any deficiencies in counsel’s performance” resulted in

9    prejudice.     Id. at 692.   To the contrary, in response to

10   questioning by the district judge, Jackson acknowledged that

11   he was satisfied with his then-counsel’s performance.

12       Before this Court, appellant now argues that he

13   received ineffective assistance of counsel at the time of

14   his guilty plea.     This ineffectiveness claim is based on his

15   attorney’s alleged failure to advise him to offer to plead

16   guilty to intent to distribute something less than five

17   grams of cocaine base, in light of his contention that he

18   would have consumed a portion of the drugs found in his

19   possession.     Because appellant did not raise this claim in

20   his § 2255 petition before the district court, we decline to

21   consider it.     See United States v. Triestman, 178 F.3d 624,

22   633 (2d Cir. 1999).


                                     -4-
1        The district court properly rejected appellant’s motion

2    for a reduction of his sentence, brought under 18 U.S.C. §

3    3582(c)(2).   Jackson was “ineligible for a modification of

4    his sentence under § 3582(c)(2) because his sentence was

5    based on the statutory mandatory minimum.”    United States v.

6    Williams, 551 F.3d 182, 186 (2d Cir. 2009).    Appellant’s

7    counsel conceded this point in a letter to the district

8    court dated May 9, 2008.

9        We have considered each of appellant’s arguments and

10   find them to be either without merit or waived.

11   Accordingly, appellant’s motion for a certificate of

12   appealability is DENIED and his appeal is DISMISSED.

13
14                               FOR THE COURT:
15                               Catherine O’Hagan Wolfe, Clerk
16
17




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