United States District Court, D. Colorado
ORDER DENYING A CERTIFICATE OF APPEALABILITY
CHRISTINE M. ARGUELLO, UNITED STATES DISTRICT JUDGE.
matter is before the Court following the Tenth Circuit's
limited remand directing the Court to consider whether to
issue a Certificate of Appealability (COA) for
Defendant-Movant Timothy James Tucker's appeal. (Doc. #
107.) Having thoroughly considered the issue, the Court
concludes that a COA should not be issued on any of Mr.
Tucker's claims in this case.
defendant may not appeal the district court's denial of a
§ 2255 petition without first obtaining a COA. 28 U.S.C.
§ 2253(c)(1)(B). A COA will only issue where “the
applicant has made a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2).
“A petitioner satisfies this standard by demonstrating
that jurists of reason could disagree with the district
court's resolution of his constitutional claims or that
jurists could conclude the issues presented are adequate to
deserve encouragement to proceed further.”
Miller-El v. Cockrell, 537 U.S. 322, 327 (2003);
see also Coppage v. McKune, 534 F.3d 1279, 1281
Tucker's 28 U.S.C. § 2255 Motion to Vacate rested on
claims that (1) his attorney provided ineffective assistance
of counsel; and (2) his plea lacked an adequate factual
basis. (Doc. # 96 at 17, 19, 20-22, 25.)
INEFFECTIVE ASSISTANCE OF COUNSEL
respect to Mr. Tucker's claims of ineffective assistance
of counsel, the Court finds that a COA should not be issued.
support his § 2255 claim of ineffective assistance, Mr.
Tucker asserted trial counsel failed to: (1) form a
meaningful and close working relationship with Mr. Tucker;
(2) communicate all evidence against Mr. Tucker; (3)
determine the mitigating circumstances and interview
potential witnesses; (4) file meaningful pre-trial motions;
(5) object throughout the proceedings; and (6) effectively
represent him before or during sentencing. (Doc. # 96 at 17,
19, 20-22, 25.)
Court analyzed Mr. Tucker's claim in light of the
two-part test outlined in Strickland v. Washington,
466 U.S. 668 (1984). That test requires Mr. Tucker to show
(1) his counsel's representation fell below an objective
standard of reasonableness, and (2) he was prejudiced as a
result. Id. at 687-94.
this standard, the Court first concluded that Mr.
Tucker's ineffective assistance of counsel claims failed
to satisfy the first prong of the Strickland test
because he provided the Court with little more than
ambiguous, speculative, and conclusory allegations. Among
other things, he did not show how is attorney's strategic
decisions were objectively unsound; he presented no witnesses
left uninterviewed or investigation left unturned; he
provided no examples of motions that were not filed; and he
was unable to specify how his attorney's communication
with him was not meaningful or effective.
Court also found Mr. Tucker failed to satisfy the second
prong of the Strickland test. The Court concluded
that Mr. Tucker that did not present any facts or argument to
support a finding of prejudice. Indeed, he did not even
mention prejudice and it could not be presumed in this case.
Court finds that reasonable jurists could not debate these
conclusions, nor find that Mr. Tucker stated a valid claim of
the denial of a constitutional right worthy of proceeding
further. The law is well-settled that mere conclusory
allegations unsupported by specifics are insufficient to
support claims under Strickland.