Opinion
A-13-CR-346-1-LY A-21-CV-281-LY-ML
05-17-2022
MICHAEL BAKER, Petitioner v. UNITED STATES OF AMERICA, Respondent.
TO THE HONORABLE LEE YEAKEL UNITED STATES DISTRICT JUDGE.
REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
MARK LANE, UNITED STATES MAGISTRATE JUDGE.
Before the court is Petitioner Michael Baker's Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255 and Memorandum of Law in Support (Dkt. #628, #629) and all related briefing. After reviewing the pleadings and the relevant case law, the undersigned submits the following Report and Recommendation to the District Court.
I. Background
A. Procedural History
Michael Baker was the Chief Executive Officer of ArthroCare, a publicly traded medicaldevice company. U.S. v. Baker, 923 F.3d 390, 392 (5th Cir. 2019). Baker, along with other senior executives, engaged in a “channel-stuffing” scheme that involved sending excess products to a distributor that did not need those products. Id. ArthroCare reported those shipments as legitimate sales, which inflated the company's revenue numbers in its financial reports. Id. Eventually, the fraud unraveled, and ArthroCare's board of directors restated its earnings, resulting in a significant drop of the value of ArthroCare's stock. Id. at 394. Both the SEC and DOJ investigated, and Baker was indicted for wire fraud, securities fraud, making false statements to the SEC, and conspiracy to commit wire fraud and securities fraud. Id. Baker was first tried and convicted on all counts in June 2014. Id. On appeal, the Fifth Circuit vacated his convictions on evidentiary grounds and remanded for a new trial. Id. At his second trial, the jury convicted Baker on twelve counts and acquitted him on two of the wire-fraud counts and one false-statement count. Id. at 395. The trial court then (1) sentenced him to a 240-month term of imprisonment and five years of supervised release; (2) imposed a $1 million fine; and (3) ordered that he forfeit $12.7 million. Id.
Baker timely appealed. Id. Baker's grounds for appeal included the argument that the term “obtain money or property” in the wire fraud statute, 18 U.S.C. § 1343, required the government to plead and prove that he “intended to obtain money or property from deceived investors.” Id. at 402. Because the argument presented a question of statutory interpretation, the Fifth Circuit reviewed it de novo. Id. At trial, the district court had instructed the jury that “[a] ‘scheme to defraud' means any plan, pattern, or course of action intended to deprive another of money or property, or bring about some financial gain to the person engaged in the scheme.” Id. at 402-03. After the trial, Baker had reasserted his objection to the jury instructions and moved for judgment of acquittal. Id. at 403. The district court denied the motion, concluding that “the focus” of a scheme to defraud is on “depriving the victim of property for some benefit” and that there is “no requirement that a defendant must directly gain or possess [the victim's] property.” Id. On appeal, Baker challenged the instruction on two grounds. Id. First, he asserted the wire fraud statute imposes a “mirror image” requirement, such that the victim's loss or money or property supplied the defendant's gain, with one being the mirror image of the other. Id. The Fifth Circuit rejected this argument. Second, Baker argued that the instruction did not require the government to prove that he intended to obtain property from a victim, as required by the statute, but instead allowed for a conviction based on a scheme that was only intended to bring about a financial gain to Baker. Id. at 403-04. The Fifth Circuit also rejected this argument and held § 1343 does not require an intent to obtain property directly from a victim. Id. at 404-05. The Fifth Circuit found the jury instructions allowed for a conviction if Baker intended to deceive the victims out of their money for his own financial benefit. Id. at 405. The Fifth Circuit found the evidence showed that by inducing investments in ArthroCare, Baker's scheme affected the victims' property rights by wrongfully leaving them “without money that they otherwise would have possessed.” Id. Accordingly, the jury instructions were not erroneous.
The Fifth Circuit similarly rejected all of Baker's other grounds for appeal and affirmed his conviction in its entirety. Id. at 407. The Supreme Court denied his petition for writ of certiorari on March 30, 2020. Dkt. #618.
Baker timely filed his § 2255 motion and reply, which include 90 pages of attorney argument and well over 100 pages of exhibits. Baker contends Kelly v. U.S., 140 S.Ct. 1565 (May 7, 2020), which issued after the Supreme Court denied his petition, drastically changed the law with respect to wire fraud.
B. Issues Presented
Baker articulates his issues slightly differently in his form 2255 motion and in his written 2255 motion and memorandum of law in support. Compare Dkt. #628, with Dkt. #629. In summary, Baker asserts the following issues:
1. Whether Baker is entitled to a new trial because Kelly requires an intent to obtain property from a victim and Baker's jury was not instructed this was an element of the offense,
2. Whether Baker is entitled to a new sentencing hearing because the government's estimate of loss does not satisfy Kelly or otherwise violated due process,
3. Whether counsel provided ineffective assistance in failing to preserve any issue related to sentencing and loss.Baker also requests an evidentiary hearing, leave to amend, and discovery. Dkt. #629 at 74-75.
See Dkt. #628 at Ground One; Dkt. #629 at Section I.
See Dkt. #628 at Ground Two; Dkt. #629 at Section II.A-F.
See Dkt. #628 at Ground Three; Dkt. #629 at Section II.H.
II. Standard of Review
Under section 2255, there are generally four grounds upon which a defendant may move to vacate, set aside or correct his sentence: (1) the sentence was imposed in violation of the Constitution or laws of the United States; (2) the district court was without jurisdiction to impose the sentence; (3) the sentence imposed was in excess of the maximum authorized by law; and (4) the sentence is otherwise subject to collateral attack. 28 U.S.C. § 2255. The nature of a collateral challenge under section 2255 is extremely limited: “A defendant can challenge his conviction after it is presumed final only on issues of constitutional or jurisdictional magnitude . . . and may not raise an issue for the first time on collateral review without showing both ‘cause' for his procedural default, and ‘actual prejudice' resulting from the error.” United States v. Shaid, 937 F.2d 228, 232 (5th Cir. 1991) (quoting United States v. Frady, 456 U.S. 152, 168 (1982)). If the error is not of constitutional or jurisdictional magnitude, the movant must show that the error could not have been raised on direct appeal and would, if condoned, “result in a complete miscarriage of justice.” United States v. Smith, 32 F.3d 194, 196 (5th Cir. 1994). However, a defendant's ineffective assistance of counsel claim does create a constitutional issue and is cognizable pursuant to Section 2255. United States v. Walker, 68 F.3d 931, 934 (5th Cir. 1996).
III. Analysis
A. Whether Kelly Entitles Baker to Any Relief
The facts of Kelly v. U.S., 140 S.Ct. 1565 (May 7, 2020), could not be more unlike this case. Kelly concerned the infamous case known as “Bridgegate,” where public officials with ties to New Jersey's then-Governor Chris Christie realigned the toll lanes leading to the George Washington Bridge from Fort Lee, New Jersey to punish the Fort Lee mayor for refusing to support Christie's reelection bid. Id. The defendants were charged with and convicted of violating federal wire fraud and fraud on a federally funded program or entity statutes. Id. at 1568; see 18 U.S.C. §§ 1343, 666(a)(1)(A). The Court held those statutes “target fraudulent schemes for obtaining property.” Id. (citing § 1343 (barring fraudulent schemes “for obtaining money or property”); § 666(a)(1)(A) (making it a crime to “obtain[ ] by fraud . . . property”)). The government argued the scheme sought to obtain the Port Authority's money or property because the defendants sought both to “commandeer” the Bridge's access lanes and to divert the wage labor of the Port Authority employees used in that effort. Id. The Court rejected that argument and held the lane realignment was an exercise of regulatory power and any employee labor that was used was an incidental cost, rather than the object, of the scheme. Thus, the scheme failed to satisfy the statutes' property requirements, and the Court reversed the convictions. Id.
Baker argues Kelly is retroactive on collateral review and adopted the very arguments he had previously made. Dkt. #629 at 26, 37-39. Specifically, Baker argues, “Kelly held that to prove fraud, it is not enough to prove that the defendant lied, and that his lies caused property loss to the victims. Instead, the government must prove that the conscious object of the defendant's lies was to obtain property from the victims.” Id. at 29. Baker contends Kelly changed the law. Id. According to Baker, under Fifth Circuit pre-Kelly precedent, it was enough to show that the defendant harmed the victim, caused loss to the victim, or affected the victim's property rights. Id. Baker argues that under Kelly the government had to prove he intended to obtain the victim's property, and the jury was not instructed on that element. Dkt. #629 at 31-36.
A petitioner can collaterally attack his conviction based on a decision issued “after [the petitioner's] conviction was affirmed” if that decision established that the “conviction and punishment are for an act that the law does not make criminal.” Garland v. Roy, 615 F.3d 391, 396-97 (5th Cir. 2010) (citing Davis v. U.S., 417 U.S. 333, 346 (1974)). However, claims raised and rejected on direct appeal are barred on collateral review. U.S. v. Webster, 392 F.3d 787, 791 (5th Cir. 2004). Nonetheless, a defendant is entitled to relitigate an issue decided on direct appeal where there has been an intervening change in the law. Chapman v. U.S., 547 F.2d 1240, 1242 (5th Cir. 1977) (citing Davis, 417 U.S. at 342). Baker argues Kelly narrowed the elements for wire fraud and the thus the jury was not properly instructed on the elements of his charges. The government contends Kelly did not announce a new understanding of the wire fraud statutes and does not affect Baker's conviction.
Kelly's central holding, for which it quotes prior cases, is that the fraud statutes at issue only target or bar “schemes for obtaining property.” Kelly, 140 S.Ct. at 1568, 1574, 1571 (“The wire fraud statute thus prohibits only deceptive ‘schemes to deprive [the victim of] money or property.'”) (quoting McNally v. U.S., 483 U.S. 350, 356 (1987)); id. at 1571 (“So under either provision, the Government had to show not only that Baroni and Kelly engaged in deception, but that an ‘object of the[ir] fraud [was] ‘property.'”) (quoting Cleveland v. U.S., 531 U.S. 12, 26 (2000)); id. at 1571 (“The fraud statutes, we held in McNally, were ‘limited in scope to the protection of property rights.'”). In Kelly, the government argued that defendants' scheme met this requirement because defendants sought to take control of the bridge's physical lanes and sought to deprive the Port Authority of the costs of compensating traffic engineers and back-up toll collections. Id. at 1572. Relying again on Cleveland, the Court stated it “ha[d] already held that a scheme to alter such a regulatory choice [of realigning toll lanes] is not one to appropriate the government's property.” Id. Although the Court reiterated that a scheme to defraud a local government of its employees' time and labor could satisfy the statute, here “[t]he time and labor of Port Authority employees were just the implementation costs of the defendants' scheme to reallocate the Bridge's access lanes.” Id. at 1573-74. “[Defendants'] plan aimed to impede access from Fort Lee to the George Washington Bridge. The cost of the employee hours spent on implementing that plan was its incidental byproduct.” Id. at 1574. Kelly did not render a new understanding of the statutes at issue. Rather, Kelly merely applied previously announced principles to the situation before it. Nor does anything in Kelly give the court reason to believe the Fifth Circuit's decision on appeal would have been different had Kelly been rendered before Baker's appeal.
Kelly's first holding-that taking over an exercise of governmental regulatory power cannot satisfy the fraud statutes' “obtaining property” requirement-is inapplicable to Baker. Baker's situation did not involve any exercise of governmental regulatory power. Kelly's second holding-that obtaining property must be the object, not merely an incidental consequence, of the scheme-also does not give the court reason to question Baker's conviction. Baker conceded “hedge funds and institutional investors lost money,” but argues “there is no evidence that this was Baker's objective.” Dkt. #643 at 13. But Baker conflates investors' losses with the property at issue in his scheme. Contrary to how Baker attempts to describe the scheme, the government does not argue that the object of his scheme was that investors would lose money when stock prices went down. Rather, “the purpose of the scheme was to mislead the investing public and induce them to buy or hold ArthroCare stock so that ArthroCare's share price would continue to increase.” Dkt. #640 at 13; see also Baker, 923 F.3d at 405 (“He made false statements to investors and potential investors to induce them to hold onto or buy ArthroCare stock .... By inducing investments in ArthroCare, the scheme affected the victims' property rights by wrongfully leaving them ‘without money that they otherwise would have possessed.'”). The investors may have felt the harm of Baker's fraudulent scheme when the scheme became public and their stock value decreased, but they were defrauded when they kept or purchased ArthroCare stock because of Baker's false statements. Accordingly, Kelly does afford Baker any relief.
Baker argues the government's position in the appeals of United States v. Blaszczak, 947 F.3d 19 (2d Cir. 2019), and United States v. Olan, 947 F.3d 19 (2d Cir. 2019), demonstrate his conviction cannot stand after Kelly. See Dkt. #629 at 29-20; Dkt. #643 at 8-14. Blaszczak and Olan were charged with violations of 18 U.S.C. §§ 1343 and 1348, inter alia, for misappropriating confidential nonpublic information from the Centers for Medicare and Medicaid Services (“CMS”) and trading on it. 947 F.3d at 26. For instance, if they learned that a forthcoming CMS rule would lower reimbursement rates, they would direct a hedge fund to short stock a company that would be negatively affected by the rule. Once the rule was announced, the company's stock prices would go down, and the short stock purchase would make money. Id. at 27. The wire fraud counts were based on the misappropriation of confidential CMS information. Id. at 29. The Second Circuit affirmed the convictions on the pre-Kelly basis that confidential government information could constitute government property. Id. at 34. In response to defendants' petitions for writs of certiorari, the government conceded a remand to the Second Circuit would be appropriate so the Second Circuit could address any impact Kelly had on its analysis.
As opposed to how Baker attempts to portray Blaszczak/Olan, nothing relevant has actually been decided in those cases. The government recognized that the Second Circuit did not have the benefit of Kelly-or any arguments addressing Kelly-when it reached its decision and agreed to have the cases remanded so the Second Circuit could consider Kelly. Contrary to Baker's attempts to make his scheme similar to Blaszczak/Olan, his scheme did not seek to deprive ArthroCare of its confidential information. Unlike Blaszczak/Olan, Baker's “scheme affected the victims' property rights by wrongfully leaving them ‘without money that they otherwise would have possessed.'” Baker, at 405. Accordingly, Blaszczak/Olan do not offer Baker any relief.
Baker also argues that the Ninth Circuit's opinion in United States v. Yates, 16 F.4th 256 (9th Cir. 2021), which came after Kelly, also demonstrates his conviction cannot stand. See Dkt. #643 at 8-14. In Yates, Yates and Heine worked for a new bank and allegedly made false statements on quarterly reports to the FDIC and the bank's board of directors. They were charged with bank fraud and 18 counts of making false bank entries under 18 U.S.C. §§ 1349 and 1005, respectively. Yates, 16 F.4th at 263. The indictment alleged the purpose of the bank fraud conspiracy “‘was to conceal the true financial condition of the Bank and to create a better financial picture of the Bank' for the board and regulators.” Id. at 264-65. In rejecting the government's position that the right to accurate information was a cognizable property right, the Ninth Circuit relied on cases that predated Kelly. Id. at 265-70, 269 (“We need not consider whether or how Kelly might affect this case.”).
Yates does not support Baker's claim for relief. Yates reached the decision it reached relying on pre-Kelly law. Yates, 16 F.4th at 269. If anything, Yates supports the government's position that Kelly did not change the law in any meaningful way. Baker's arguments with respect to Yates epitomize the problems with most of his arguments. Baker argues that his case is similar to Yates because he too made misrepresentations to maintain his salary and employment benefits. See Dkt. #643 at 10-14. He acknowledges that hedge funds and institutional investors lost money, but he contends that was just an incidental byproduct of the scheme for which he cannot be liable after Kelly. Id. at 13-14. Baker's attempts to factually recast his scheme as something else directly conflict with the Fifth Circuit's opinion on direct review. On Baker's motion for judgment after his conviction, the trial court “explained that ‘substantial evidence was presented to show the misleading and fraudulent statements made by Baker induced investment in ArthroCare,' and that ‘a rational trier of fact could have found the goal of the scheme . . . was to deprive investors of money they otherwise would have possessed.'” Baker, 923 F.3d at 403. In rejecting Baker's arguments that the jury instructions were defective, the Fifth Circuit held:
The jury instructions here allowed for a conviction if Baker intended to deceive the victims out of their money for his own financial benefit. The evidence at trial showed that Baker did just that: (1) He made false statements to investors and potential investors to induce them to hold onto or buy ArthroCare stock; (2) he knew the statements did not accurately reflect ArthroCare's business model or revenue projections; and (3) the scheme was intended to benefit Baker via bonuses and appreciation of his own stock options. By inducing investments in ArthroCare, the scheme affected the victims' property rights by wrongfully leaving them “without money that they otherwise would have possessed.”Id. at 405 (emphasis added). Baker's argument changes the property at issue from the victim's money to accurate information about ArthroCare. Unlike Yates, where the defendants deceived their employer to continue to receive their salaries but did not otherwise take money from the employer, Baker deceived investors and potential investors to induce them to keep or buy ArthroCare stock to benefit him via bonuses and appreciation of his own stock options.
Accordingly, Baker has not shown Kelly materially changed the law related to his offenses or that he is entitled to a new trial because the jury was not properly instructed about the offense in light of Kelly.
B. Whether the Government's Loss Calculation Violated Kelly or Due Process
Baker acknowledges that “Comment 3 of §2B1.1 [of the Sentencing Guidelines] allows [] calculating ‘actual loss' as ‘the reasonable foreseeable pecuniary harm that resulted from the offense.'” Dkt. #643 at 15. Generally, claims concerning the application of the Sentencing Guidelines cannot be raised in a § 2255 motion. Relief under 28 U.S.C. § 2255 is reserved for transgressions of constitutional rights and for a narrow range of injuries that could not have been raised on direct appeal and would, if condoned, result in a complete miscarriage of justice. United States v. Vaughn, 955 F.2d 367, 368 (5th Cir. 1992). A district court's technical application of the Guidelines does not give rise to a constitutional issue cognizable under § 2255. Id.; United States v. Walker, 68 F.3d 931, 934 (5th Cir. 1995). Thus, Baker's claim concerning loss for his Guideline calculation is not cognizable on collateral review.
Baker nonetheless argues that “Kelly necessarily applies to a calculation of loss. It is axiomatic that if ‘a property fraud conviction cannot stand when the loss to the victim is only an incidental byproduct of the scheme' the government cannot get in the back door the very prosecution theory the Court rejected up front.” Dkt. #643 at 15. The court has already rejected Baker's twisted application of Kelly to his scheme and his attempts to recharacterize his fraud scheme into something different than it was. Moreover, Kelly does not discuss any loss calculation related to sentencing.
Accordingly, Baker has not shown he is entitled to a new sentencing hearing because the government's estimate of loss does not satisfy Kelly or due process.
C. Whether Counsel Was Ineffective
The Sixth Amendment to the United States Constitution guarantees a defendant in a criminal case reasonably effective assistance of counsel. U.S. CONST. AMEND VI; Cuyler v. Sullivan, 446 U.S. 335, 344 (1980). To prevail on an ineffective assistance of counsel claim, a movant must satisfy the two-part test enunciated in Strickland v. Washington. 466 U.S. 668, 687 (1984). First, he must demonstrate counsel's performance fell below an objective standard of reasonableness. Id. Under this standard, counsel must “research relevant facts and law, or make an informed decision that certain avenues will not be fruitful.” United States v. Conley, 349 F.3d 837, 841 (5th Cir. 2003). The effectiveness of an attorney's representation must be gauged “on the facts of the particular case, viewed as of the time of counsel's conduct.” Strickland, 466 U.S. at 690. A court will not find ineffective assistance merely because it disagrees with counsel's trial strategy. Crane v. Johnson, 178 F.3d 309, 312 (5th Cir. 1999). Whether counsel's performance was deficient is determined by examining “the law as it existed” at the time of the representation. See id. “[C]ounsel is not ineffective for failing to raise a claim that courts in the controlling jurisdiction have repeatedly rejected . . . or even for not rais[ing] every nonfrivolous ground that might be pressed on appeal.” United States v. Fields, 565 F.3d 290, 294 (5th Cir. 2009) (internal quotations and citations omitted).
Second, movant must prove he was prejudiced by counsel's substandard performance. “[T]o prove prejudice, 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.” Conley, 349 F.3d at 841-42. When a movant fails to meet either requirement of the Strickland test, his ineffective assistance of counsel claim is defeated. See Belyeu v. Scott, 67 F.3d 535, 538 (5th Cir. 1995); United States v. Gaudet, 81 F.3d 585, 591-92 (5th Cir. 1996). “‘[A] court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.'” United States v. Fields, 761 F.3d 443, 453 (5th Cir. 2014) (quoting Strickland, 466 U.S. at 689)). Additionally, courts presume that counsel's “challenged action might be considered sound trial strategy.” Belyeu, 67 F.3d at 538 (citing Strickland).
Baker contends that even if the court does not find he in entitled to relief under Kelly, the court “should consider the loss calculation issue and new expert reports through the lens of ineffective assistance of counsel.” Dkt. #629 at 74. Apart from setting forth the standard for ineffective assistance of counsel, Baker does not expand on his argument. Id. However, in his reply brief, he concedes that “his lawyers repeatedly objected to the loss calculations in his case.” Dkt. #643 at 15. As the government points out, Baker has not properly raised an ineffective assistance of counsel claim and his counsel did make the same argument that the loss calculations were unreliable and his gain should be used instead. Dkt. #640 at 22 n.6 (citing Dkt. #317-2 at 10, 12 (“[the PSR's loss calculation] is an inherently unreliable method of calculating loss that substantially overstates the loss to victims” and “Mr. Baker's gains are a more reasonable measure”); Dkt. #323 at 12-21; Dkt. #562 at 1; Dkt. #629 at 72 (“[Baker's] lawyers repeatedly objected to the loss calculations in his case.”)).
Accordingly, Baker has not shown he is entitled to relief because he was denied effective assistance of counsel.
D. Request for an Evidentiary Hearing, Leave to Amend, and Discovery
Citing a Ninth Circuit case, Baker requests an evidentiary hearing. Baker has not shown that an evidentiary hearing is warranted. Baker's claims rest on the applicability of the Kelly decision, and he has not shown Kelly to be relevant to his conviction or sentence.
Baker also seeks leave to amend his motion on the grounds that his attorney was only recently hired, he faced a strict 1-year deadline to file the § 2255 motion, and the government has not responded to his attempts to obtain “crucial information that was referenced in the record but was not made part of the electronic record on appeal.” Dkt. #629 at 75. Baker has not described what “crucial information” is missing from the record or how he would amend his motion. After Baker's motion was filed, the parties requested various extensions to file the response and reply briefs. Thus, Baker has had ample time to articulate any specific need to amend his motion and has not done so. Accordingly, Baker has not shown cause to amend.
Finally, Baker seeks authorization for discovery under Rule 6(a), which provides a “[j]udge may, for good cause, authorize a party to conduct discovery under the Federal Rules of Criminal Procedure or Civil Procedure, or in accordance with the practices and principles of law.” Dkt. #629 at 75. Baker does not describe what discovery he needs or why it is necessary. Accordingly, Baker has not shown cause for discovery.
Accordingly, the undersigned denies this relief.
IV. Recommendations
For the reasons given above, the Magistrate Court respectfully RECOMMENDS Petitioner Michael Baker's Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255 and Memorandum of Law in Support (Dkt. #628, #629) be DENIED.
V. Certificate of Appealability
An appeal may not be taken to the court of appeals from a 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)(A). Pursuant to Rule 11 of the Federal Rules Governing Section 2255 Proceedings, effective December 1, 2009, the district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant.
A certificate of appealability (“COA”) may issue only if a movant has made a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). The Supreme Court fully explained the requirement associated with a “substantial showing of the denial of a constitutional right” in Slack v. McDaniel, 529 U.S. 473, 484 (2000). In cases where a district court rejected a movant's constitutional claims on the merits, “the petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong.” Id. “When a district court denies a habeas petition on procedural grounds without reaching the petitioner's underlying constitutional claim, a COA should issue when the petitioner 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.” Id.
In this case, reasonable jurists could not debate the denial of the movant's section 2255 motion on substantive or procedural grounds, nor find that the issues presented are adequate to deserve encouragement to proceed. Miller-El v. Cockrell, 537 U.S. 322, 327 (2003) (citing Slack, 529 U.S. at 484). Accordingly, it is respectfully recommended that the District Court not issue a certificate of appealability.
VI. Objections
The parties may file objections to this Report and Recommendation. A party filing objection must specifically identify those findings or recommendations to which objections are being made. The District Court need not consider frivolous, conclusive, or general objections. See Battles v. United States Parole Comm'n, 834 F.2d 419, 421 (5th Cir. 1987).
A party's failure to file written objections to the proposed findings and recommendations contained in this Report within fourteen (14) days after the party is served with a copy of the Report shall bar that party from de novo review by the District Court of the proposed findings and recommendations in the Report and, except upon grounds of plain error, shall bar the party from appellate review of unobjected-to proposed factual findings and legal conclusions accepted by the District Court. See 28 U.S.C. § 636(b)(1)(C); Thomas v. Arn, 474 U.S. 140, 150-53 (1985); Douglass v. United Services Automobile Ass'n, 79 F.3d 1415 (5th Cir. 1996) (en banc).