UNITE]) STATES DIS'I`RICT COURT
F()R 'I`HE ])ISTRICT OF COLUMBIA

UNITEI} STATES OF AMERICA,

 

Piainrirf,
“ Crim. No. 10-0220 (TFH)
Awt)lzlzw NovAK,
])efendant.
MEM()RANI)UM OPINION

This matter is before the Court to determine whether a certificate of appealability
("COA") is warranted 'l`his Court denied pro se defendant Andrew Novak’s Motion to Vacate,
Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 by Memorandtlm Opinion and
()rder of March 29, 2016 [ECF Nos. 42 & 43]. On May 16, 20]6, defendant filed a Notice of
Appeal and Application for a COA [ECF Nos. 44 & 45] in which he asserts that this Court
abused its discretion by denying his motion without conducting an evidentiary hearing. The
Notice of Appeal was transmitted to the United States Court of Appeals for the District of
Columbia Circuit and, on june 1, 2016, the court of appeals issued an Order [ECF No. 4`?]
holding the case in abeyance pending this Court’s resolution of defendant’s application. Aftel'
carefully considering the entire record in this case and for the reasons provided below, the Court

will deny defendant’s application for a COA.

A defendant must seek a COA to appeal a final order in a proceeding under section 2255.
See 28 U.S.C. § 2253(0)(1) ("Unless a circuitjustice or judge issues a certificate of appealability,
an appeal inay not be taken to the court of` appeals from . . . the final order in a proceeding under
section 2255."). The Court may issue a COA "only if the applicant has made a substantial
showing of the denial ofa constitutional right.” 28 U.S.C. § 2253(0)(2). To make a substantial
showing of the denial of a constitutional right, the applicant must "show[] that reasonable jurists
could debate whether (or, for that matter, agree that) the [inotioli] should have been resolved in a
cli'fferelit manner or that the issues presented were ‘adequate to deserve encouragement to
proceed further."’ Slack v. M€Danr'el, 529 U.S. 473, 483-84 (2000) (internal quotation lnarl~;s
ornitted) (quoting Barcefoor v. Est'elle, 463 U.S. 880, 893 n.4 (1983)).

'l"he sole issue defendant presents in his application is "[w]hether the District Court
abused its discretion in deciding [defendant’s] 2255 motion without conducting an evidentiary
hearing prior to entering judgment." Application for a COA 2. Defendant contends that because
this Court ordered the government to respond to his motion under section 2255, he was entitled
to an evidentiary hearing. fd. at 4~5. To the contrary, however, regardless whether the Court
orders the governnient to respond to a motion under section 2255, the Court need not hold an
evidentiary hcaring, where, as here, the Court concludes that "‘the motion and the files and
records of the case conclusively show that the prisoner is entitled to no relief."’ Um'!ea' Sla£es v.
Novak, Crim. No. ]U-0220 (TFl-I), 2016 WL 1305291, at *4 (D.D.C. Mar. 29, 2016) (qiioting
Um'red S.tc:!e.s' v. Mr)rr)'.s‘on, 98 F.3d 619, 625 (D.C. Cir. 1996)); see generally Um`.*ed Sta.'.'els' v.

Bax!e.r, 761 li.§~'»d l';`, 22-23, 24 n.5 (D.C. Cir. 2014) (notilig that the government filed a response

to the defendant’s motion under section 2255 and finding "no warrant for granting a certificate of
appealabi]ity" on the issue whether the district court abused its discretion by failing to grant an
evidentiary hearing prior to denying motion), cert cfent`ea', 135 S. Ct. 1477 (20]5).

Furthermore, to the extent defendant otherwise suggests that the Court erred in denying
his motion under section 225 5, the Court concludes that reasonable jurists could not debate
whether the Court should have resolved the motion in a different manner than it did here, that is,
by concluding that (]) defendant failed to demonstrate that counsel’s performance was deficient
vvhere, even assuming, as defendant asserted in his motion, that counsel chose not to investigate
or argue certain defenses and instead focused on negotiating a plea agreement, such decisions
were not outside the wide range of professionally competent assistance given the implausibility
of said defenses and the fact that defendant had confessed to federal authorities, and (2) even
assuming counsel’s performance was deficient for the reasons proffered by defendant, he failed
to demonstrate prejudice (i.e., a reasonable probability that but for counsel’s deficieneies,
defendant would not liave pleaded guilty and would have insisted on going to trial) given the
strength of the government’s evidence in light of defendant’s confessions and disclosures to
federal authorities; the weakness of his implausible defenses; and the additional exposure he
would have faced had he elected to proceed to trial. Nr)vak, 2016 WL 1305291, at *2-4 (citing,
ritter c:!z`a, St'rfc'kfand v. Washington, 466 U.S. 668, 687, 690~91 (]984)). In sum, defendant has
not "inade a substantial showing of the denial of a constitutional right." 23 U.S.C. § 2253(0)(2);

.s'ee Sfcrck, suprc:.

For the foregoing reasons, the Court will deny def`endants’ Application for a COA [_`ECF
No. 45]. 'l"he Clerk ol" the Court will be directed to promptly notify the United States Court of
Appeals for the Distriet ol` Columbia Circuit of this Court’s decision. An appropriate order will

accompany this opinion.

f

/
,2016

    
 

june g

'l`homas *

SeniorUnited States ` rict.ludge

