UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA,
Plaintiff, Case No.: 05-cr-O408 (TFH)
vs.

PEDRO JULIO PRANDY-BINETT,

Defendant.

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MEMORANDUM OPINION

Pending before the Court are Mr. Prandy-Binett`s Pro Se Motion for a Certificate of
Appealability ("COA”) [Dkt. No. 49]; and Application for Leave to Proceed In Forma Pauperz`s
[Dkt. No. 53]. After careful consideration of the motions and the record in this case, the Couit

will deny the Motion for a COA and will grant the Application to Proceed In Forma Pauperz's.

I. Background

In November 2005, Petitioner Pedro Julio Prandy-Binett pleaded guilty, pursuant to a plea
agreement, to one count of Unlawful Possession with Intent to Distribute cocaine in violation of
21 USC §§ 841(a)(1) and 84l(b)(l)(C). He was sentenced to ninety-one months incarceration by
Judge John G. Penn on April 13, 2006. judgment (April 13, 2006) at l-Z [Dkt. No. 22]. In the
plea agreement, Petitioner acknowledged accountability for at least 1 kg of heroin and 5 kg of
cocaine. Plea 1 2. At the sentencing hearing, Judge Penn informed Petitioner that he has a right to
an appeal and that he has ten days to exercise that right. Hr’g. Tr. 18:17-19, April ll, 2006 [Dkt.

No. 37-8]. Judge Penn further stated that if Petitioner’s attorney is "unwilling or unable to assist

you in taking an appeal, if you advise me within 10 days, then l would see to it that your notice of
appeal is filed." ld. at 18:19-19:1. A week later, Petitioner sent Judge Penn a letter requesting an
attorney to file an appeal. Judge Penn forwarded that letter to George Allen Dale, the attorney
who represented Petitioner at sentencing and in negotiating the plea agreement. Ten days later,
Mr. Dale filed a notice along with a letter from Petitioner stating: "I reaffirm my earlier decision
not to appeal my sentence or conviction . . . . The letter I sent to Judge Penn was typed by another
inmate, who had talked me into asking for an appeal/sentence modification." Pet’r’s Letter (April
26, 2006) [Dkt. No. 24-2]. Nevertheless, on February 26, 2007, ten months after sentencing,
Petitioner filed a § 2255 motion pro se, alleging that he had intended to plead guilty only to selling
250 grams of cocaine on Dec. 3, 2004 and that he should not have been held accountable for
related conduct raising the applicable drug quantities to one or more kilograms for sentencing
purposes.

Petitioner filed the § 2255 motion along with a declaration and memorandum of law
requesting that his judgment be vacated and that he be resentenced so that he may pursue an
appeal. The matter was referred to Magistrate Judge John M. Facciola pursuant to Local Criminal
Rule 59.2 and Local Civil Rule 72.3. Referral Order (May 19, 2008) [Dkt. No. 32]. Judge
Facciola appointed counsel to represent Petitioner, and on September 24, 2009, Judge Facciola
held an evidentiary hearing. Mr. Dale testified at that hearing, and Petitioner’s counsel raised
claims that had not been previously asserted by Petitioner. On October 23, 2009, Judge Facciola
issued a Report, recommending that Petitioner’s motion be denied. Report at l2. Petitioner filed
two separate objections to the Report-one via counsel and the other pro se. The Court adopted

the Magistrate’s Report & Recommendation on October 8, 20l0, and denied the § 2255 motion.

[Dkt. No. 43].

Petitioner filed a Notice of Appeal and Request for Certificate of Appealability on
December 17, 2010. [Dkt. No. 49]. On December 22, 2010 the U.S. Court of Appeals referred
the COA issue to the District Court and ordered that the case be held in abeyance until that matter

is resolved. [Dkt. No. 52]. On January 4, 201 1, Petitioner filed his Motion to Appeal In Forma

Pauperz`s. [Dkt. No. 53].

II. Motion for COA

Under 28 U.S.C. § 2253(€)(1), a COA is required before an appeal may be taken from a
denial of a § 2255 habeas motion. Petitioner may obtain such a COA "only if the applicant has
made a substantial showing ofthe denial ofa constitutional n`ght." 28 U.S.C. § 2253(0)(2). "`The
petitioner need not show that he should prevail on the men`ts. . .. Rather, he must demonstrate that
the issues are debatable among jurists of reason; that a court could resolve the issues [in a different
manner]; or that the questions are adequate to deserve encouragement to proceed further."’ United
States v. Mitchell, 216 F.3d 1126, 1130 (D.C. Cir. 2000) (quoting Barefoot v. Estelle, 463 U.S.
880, 893 n.4 (1983) (emphasis in original)).

ln this case, the Magistrate Judge’s Report denying Mr. Prandy’s § 2255 motion and the
Court’s affirmance of that Report are in complete accord and forcefully reject Mr. Prandy’s
contentions of ineffective assistance of counsel, finding them completely meritless. Any claims or
innuendo that Mr. Prandy raises that the presiding judge, the defense counsel, and the prosecutor
duped or pressured Mr. Prandy into any course of action or denied him any right are unfounded
Likewise, Mr. Prandy`s contention in his motion that his defense counsel had a conflict of interest
because he "like[d the prosecutor] alot" [sic] is far too weak to warrant a COA. In sum, the Court

detects nothing that reasonable jurists could debate regarding Mr. Prandy’s § 2255 motion, nor

does the Court consider Mr. Prandy’s claims worthy of further encouragement. The Court will

therefore deny the Motion for a COA.

III. Motion to Proceed In Forma Pauperis

Having carefully considered the financial information Mr. Prandy has provided as part of

his motion, the Court finds that he is entitled to proceed in forma pauperis.

IV. Conclusion
The Court will therefore deny the Motion for a COA but will grant the motion to proceed

in forma pauperz`s. An appropriate Order shall accompany this Memorandum Opinion.

January13,2011

THoMAs F. HoG//>_.ijj
UNITED STATES DISTRICT JUDGE

Copies to:

PEDRO JULIO PRANDY-BINNETT
Reg. No. 16266-016

Allenwood Low

F ederal Correctional Institution
Imnate Mail/Parcels

P.O. Box 1000

White Deer, PA 17887

