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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

RANDALL CASSEDAY,
Petitioner,
Criminal Action No. 06-329 (CKK)
V~ civil Acrion N@. 08-3 22 (CKK)
UNITED STATES OF AMERICA,
Respondent.

MEMORANDUM OPINION & ORDER
(February 14, 2011)

Presently before the Court is Petitioner Randall Casseday’s request for a certificate of
appealability to appeal all the issues upon which he requested relief under 28 U.S.C. § 2255.
Following receipt of such a request, this Court must determine whether a certificate of
appealability should be issued. See Mz`tchell v. Reno, 216 F.3d 1126 (D.C. Cir. 2000); Fed. R.
App. P. 22(b)(l). A certificate of appealability may issue if the petitioner "has made a
substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). "A
substantial showing of the denial of a right includes showing that reasonable jurists could debate
whether (or for that matter, agree that) the petition should have been resolved in a different
manner or that the issues presented were ‘adequate to deserve encouragement to proceed
further."’ Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quoting Barefoot v. Estelle, 463 U.S.
880, 893 & n.4 (1983)). Where the petition has been denied by the district court on the merits,
the petitioner must demonstrate that reasonable jurists would find the district court’s assessment
of the constitutional claims debatable or wrong. Ia'. If the certificate is granted, this Court must

specify which issues raise such a substantial showing. Um'ted States v. Mitchell, 216 F.3d 1126,

1130 (D.C. Cir. 2000); Um`ted States v. Weaver, 195 F.3d 52, 53 (D.C. Cir. 1999).

A. Procedural History

On February 15, 2()07, this Court sentenced Casseday to a total of 90 months’
imprisonment pursuant a plea agreement under Federal Rule of Criminal Procedure 11(c)(1)(C).
Casseday did not appeal his sentence. On February 19, 2008, Casseday filed a motion to vacate,
set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. In his motion, Casseday asserted
two claims: (1) that the Court violated Rule 11 during sentencing by failing to ensure that the
guilty plea was voluntary and that there was a factual basis for the plea; and (2) that his counsel
was constitutionally ineffective for failing to file a notice of appeal. On May l, 2008, Casseday
filed an amended § 2255 motion raising two additional claims: (1) that the Court violated Rule
11 when it failed to inform him of the reasons for his sentence as required by 18 U.S.C.
§ 3553(0); and (2) that his conviction was based on evidence seized in violation of the Fourth
Amendment. Casseday subsequently filed supplemental materials in which he appeared to assert
additional claims pertaining to alleged constitutional violations during his arrest. Casseday also
claimed during his last supplemental filing that he was coerced by his counsel into answering one
of the Court’s questions affirmatively during the plea colloquy.

On July 13, 2010, the Court issued a Memorandum Opinion and Order addressing the
claims asserted by Casseday. See Casseday v. Um'tea' Stales, 723 F. Supp. 2d 137 (D.D.C. 2010).
The Court held that the Fourth Amendment claim asserted in Casseday’s amended § 2255 motion
and any claims pertaining to Casseday’s arrest were untimely and must be dismissed because
they were not filed within the one-year statute of limitations under 28 U.S.C. § 225 5(1). The

Court further held that Casseday’s claims that the Court violated Rule 11 by failing to ensure the

plea was voluntary and ascertain a factual basis for his plea lacked merit, and the Court dismissed
them without an evidentiary hearing. Because of conflicting testimony in the record, the Court
ruled that an evidentiary hearing should be held to determine whether Casseday’s counsel was
constitutionally ineffective for failing to file a notice of appeal and for coercing Casseday during
the plea colloquy. The Court held in abeyance Casseday’s claim that the Court failed to provide
a written statement of reasons for his sentence pending further briefing from the Govemment.
The Government then filed a supplemental opposition brief and Casseday filed a supplemental
reply.

The Court held an evidentiary hearing on January 7, 201 1. During the hearing, Casseday
informed the Court that he had decided not to present any evidence and would rest on his written
papers. The Govemment presented testimony from Casseday’s former defense counsel and
submitted evidence into the record.

On January 25, 201 1, the Court issued a Memorandum Opinion and Order denying the
remainder of Casseday’s claims. See ___ F. Supp. 2d __, 2011 WL 229408 (D.D.C. Jan. 25,
201 l). The Court ruled that because Casseday had failed to present any evidence during the
hearing, he could not meet his burden of proof with respect to his claims that his counsel was
constitutionally ineffective for failing to file a notice of appeal or for coercing him during the
plea colloquy. The Court also made alternative factual findings based on the record at the
hearing and determined that Casseday’s claims lacked merit. The Court also ruled that because
Casseday had failed to appeal his sentence and his counsel was not constitutionally ineffective
for failing to file a notice of appeal, he could not establish cause to overcome his procedurally

defaulted claims. Finally, the Court ruled that Casseday had not shown he was actually

prejudiced by his failure to receive a written statement of reasons for his sentence because the
reasons were explained to him orally in open court and because Casseday received the sentence
to which he explicitly agreed under Rule ll(c)(l)(C). Accordingly, the Court denied Casseday’s
§ 2255 motion in its entirety.

B. Casseday ’s Requestfor a Certzfcate of Appealabilz`ly

In his request for a certificate of appealability ("COA"), Casseday argues: (l) the Court
erred in determining that his claims regarding his arrest and warrantless search of his office by a
special police officer were untimely; (2) the Court erred in denying his claims for ineffective
assistance of counsel because the allegations set forth in his petition, combined with the
testimony received by the court during the evidentiary hearing, establish that he was denied
adequate representation; and (3) the Court erred in determining that he was not prejudiced by his
failure to receive a written statement of reasons for his sentence. The Court’s reasoning for these
rulings was thoroughly laid out in its written opinions.

With respect to the ineffective assistance of counsel claims addressed during the
evidentiary hearing, Casseday did not make “a substantial showing of the denial of a
constitutional right" because he did not present any evidence to support his claims. In light of
Casseday’s failure to present any evidence, no reasonable jurist could conclude that the issues
Casseday presented were "adequate to deserve encouragement to proceed further." Therefore,
there is no basis to appeal the Court’s denial of these claims.

Although the Court did address the merits of Casseday’s remaining claims, the primary
basis for dismissing them was procedural. Except for his ineffective assistance of counsel

claims, all of Casseday’s claims were procedurally defaulted because he failed to raise them on

direct appeal. "Where a plain procedural bar is present and the district court is correct to invoke
it to dispose of the case, a reasonable jurist could not conclude either that the district court erred
in dismissing the petition or that the petitioner should be allowed to proceed further. ln such a
circumstance, no appeal would be warranted." Slack v. McDaniel, 529 U.S. at 484. Because
Casseday had to establish "cause and prejudice" to overcome his procedural default and he failed
to provide the Court with any evidence of ineffective assistance of counsel, no reasonable jurist
could conclude that the procedural bar was inapplicable. Accordingly, the Court finds that there
is no basis to appeal the Court’s denial of Casseday’s remaining § 2255 claims.
>l< >l< =l<

For the foregoing reasons, it is, this 14th day of February, 2011, hereby

ORDERED that Petitioner’s [73] Petition for Certification requesting a certificate of
appealability is DENIED.

SO ORDERED.

T his is a final, appealable Order.

 ma w
COLLEEN KOLLAR-KOTELLY `
United States District Judge

