UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

 

UNITED STATES OF AMERICA,

Plaintiff,

v. Criminal No. 08-20669-4

Civil No. 13-14343

CARLOS A. SOLER-NORONA,

Defendant.

 /

OPINION AND ORDER DENYING MOTION TO VACATE SENTENCE,

DENYING MOTION FOR APPOINTMENT OF COUNSEL,

DENYING APPLICATION TO PROCEED IN FORMA PAUPERIS

DENYING REQUESTS FOR TRIAL TRANSCRIPTS, 

AND DENYING CERTIFICATE OF APPEALABILITY

On October 10, 2013, Defendant Carlos Soler-Norona filed a pro se motion to

vacate sentence pursuant to 28 U.S.C. § 2255. Defendant is currently incarcerated at

the Kinross Correctional Facility in Kincheloe, Michigan, serving a sentence in state

custody. In the case at issue here, a jury convicted Defendant of three counts relating

to a large-scale conspiracy to possess and distribute cocaine. The court sentenced

Defendant to 136 months’ imprisonment upon his release from state custody.

In his motion to vacate, Defendant raises seven grounds of error which fall into

two general categories: ineffective assistance of counsel claims and unfair trial claims. 

The Government responds that Defendant failed to demonstrate ineffective assistance

of counsel and procedurally defaulted his other claims. Defendant has also filed a

request for appointment of counsel, an application to proceed in forma pauperis, and 

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two requests for court transcripts. For the reasons set forth below, the court will deny

the motion to vacate sentence, deny the request for appointment of counsel, deny the

application to proceed in forma pauperis, deny the requests for trial transcripts, and

deny a certificate of appealability. 

I. BACKGROUND

On January 8, 2009, the Government indicted Defendant on three counts: 

conspiracy to distribute and to possess with intent to distribute cocaine, 21 U.S.C.

§§ 846 & 841(a)(1); aiding and abetting possession with intent to distribute cocaine, 21

U.S.C. § 841(a)(1); and the unlawful use of a communication facility, 21 U.S.C. §

843(b). This indictment named Defendant and eight other men as members of a

conspiracy to import, possess, and distribute narcotics. The ringleader of the

conspiracy, Javier Lara-Tella, oversaw and coordinated the importation of multikilograms of cocaine from Mexico. Lara-Tella and his co-conspirators then distributed

the cocaine to buyers throughout the metro-Detroit area. The Government described

Defendant as a low-level middleman in this conspiracy, who brought together suppliers

and buyers and brokered cocaine sales. 

At trial, the Government offered testimony from law enforcement officers who

investigated the conspiracy and who had observed Defendant using coded language to

coordinate narcotics transactions. Lara-Tella and Reginald Statom, one of Defendant’s

customers, corroborated that Defendant arranged and brokered cocaine sales. 

Additionally, the Government offered wiretap recordings of telephone conversations,

where Defendant scheduled and arranged drug deals. Because these conversations

were in Spanish and were intentionally cryptic, the Government provided English

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translations of the conversations and explained the meaning of any coded language that

Defendant used to conceal the true purpose of his calls. Defendant, represented by

David A. Cripps, countered that Lara-Tella and Statom were unreliable witnesses

because their plea deals depended on their testimony against Defendant. Additionally,

Defendant claimed that the Government’s wiretap evidence was misleading. He argued

that some Spanish words can have multiple meanings, and that the Government

selected English translations that made his conversations seem incriminating. Finally,

Defendant asserted that there was no proof that he personally possessed drugs. On

November 19, 2009, a jury found Defendant guilty on all counts. 

After Defendant’s conviction, the court granted a motion for Cripps to withdraw as

counsel. William Winters represented Defendant at sentencing, where the court

sentenced Defendant to 136 months’ imprisonment. The next day, Defendant appealed

his conviction to the Sixth Circuit Court of Appeals. With his appeal pending, Defendant

sought to dismiss Winters as his counsel and the Sixth Circuit appointed Robert Jensen

to replace him. However, before ruling on Defendant’s appeal, the Sixth Circuit granted

Defendant’s request to dismiss Jensen and determined that Defendant would proceed

pro se.

On August 15, 2011, the Sixth Circuit affirmed Defendant’s conviction and denied

his request for counsel in an unpublished opinion. See United States v. Soler-Norona,

No. 10-2027, slip. op. at 6 (6th Cir. Aug. 15, 2011). Thereafter, on October 15, 2012,

the Supreme Court denied Defendant’s motion for writ of certiorari. Soler-Norona v.

United States, 133 S. Ct. 490 (2012). 

Defendant then filed the pending motions.

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II. STANDARD

Under 28 U.S.C. § 2255, a prisoner sentenced by a federal court may “move the

court which imposed the sentence to vacate, set aside or correct the sentence” on the

ground “that the sentence was imposed in violation of the Constitution or laws of the

United States, or that the court was without jurisdiction to impose such a sentence, or

that the sentence was in excess of the maximum authority by law, or is otherwise

subject to collateral attack.” 28 U.S.C. § 2255(a). “[§]2255 is not a substitute for a

direct appeal,” Regalado v. United States, 334 F.3d 520, 528 (6th Cir. 2003) (citing

United States v. Frady, 456 U.S. 167-68 (1982)), “a prisoner must clear a significantly

higher hurdle than would exist on direct appeal” to merit collateral relief, Frady, 456 U.S.

at 166. Consequently, “[t]o prevail on a § 2255 motion alleging constitutional error, the

defendant must establish an error of constitutional magnitude which had a substantial

and injurious effect or influence of the proceedings.” Watson v. United States, 165 F.3d

486, 488 (6th Cir. 1999) (citing Brecht v. Abrahamson, 507 U.S. 619, 637-38 (1993)). 

Though non-constitutional errors are generally outside the scope of § 2255 relief, see

United States v. Cofield, 233 F.3d 405, 407 (6th Cir. 2000), a defendant can prevail on a

§ 2255 motion alleging non-constitutional error “by establish[ing] a ‘fundamental defect

which inherently results in a complete miscarriage of justice, or, an error so egregious

that it amounts to a violation of due process.” Watson, 165 F.3d at 488 (quoting United

States v. Ferguson, 918 F.2d 627, 630 (6th Cir. 1990) (internal quotation marks

omitted)). 

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III. DISCUSSION

Defendant raises seven claims of error. In two of these claims, he argues that

both his trial and his appellate attorney failed to provide effective assistance of counsel. 

In his other five claims, Defendant alleges that he did not receive a fair trial. 

A. Ineffective Assistance of Counsel

To support a claim of ineffective assistance of counsel, a defendant must satisfy

the two-pronged test set forth in Strickland v. Washington, 466 U.S. 668 (1984). Under

the first prong, Defendant must show that his counsel’s performance was deficient,

which “requires a showing that counsel made errors so serious that counsel was not

functioning as the ‘counsel’ guaranteed by the Sixth Amendment.” Id. at 687. The

appropriate standard by which to judge an attorney’s performance is “simply

reasonableness under prevailing professional norms.” Id. at 688. Under the second

prong, a defendant must show that counsel’s errors were prejudicial to the defense. A

defendant may establish prejudice by showing “that counsel’s errors were so serious as

to deprive the defendant of a fair trial.” Id. at 687. A defendant must show more than

“some conceivable effect on the outcome of the proceeding;” rather he must

demonstrate “a reasonable probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different.” Id. at 693-94. “In deciding an

ineffective assistance claim, a court need not address the two components of the claim

in any order, or even address both components if an insufficient showing is made on

one.” United States v. Cox, 826 F.2d 1518, 1525 (6th Cir. 1987) (citation omitted). 

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Defendant argues that his sentence should be vacated because he received

ineffective assistance of counsel from two of his attorneys. First, Defendant claims that

his trial attorney, David Cripps, failed to properly investigate his case and did not act as

a vigorous advocate. Second, Defendant claims that his appellate counsel, Robert

Jensen, also failed to provide effective assistance of counsel because he did not meet

with Defendant and allegedly did not raise meritorious issues on appeal. 

1. Ineffective Assistance of Trial Counsel

Defendant’s arguments that his trial attorney, David Cripps, failed to provide

effective assistance of counsel fall into two categories: failure to prepare for trial and

failure to act as a vigorous advocate. 

a. Failure to Prepare for Trial

Defendant argues that Cripps failed to adequately prepare for trial in several

ways. First, Defendant asserts that Cripps blindly accepted the Government’s

translation of wiretap evidence, and was unprepared to address Defendant’s translation

concerns. To the contrary, the record reveals that Cripps frequently raised the problem

of mistranslations in his arguments. In his opening statements, Cripps explained to the

jury that words might be translated in ways that color their meaning. (Dkt. # 180, Pg. ID

1380–81.) Cripps also cross-examined Detective Miguel Chino extensively about how

different Spanish words have multiple meanings. (Dkt. # 162, Pg. ID 608–22.) Cripps

sufficiently addressed the issue of mistranslations at trial.

Second, Defendant contends that Cripps failed to prepare for trial because he did

not give Defendant more time to review the Government’s wiretap evidence, including

audio recordings and transcript translations. Defendant reasons that his own analysis

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was critical because he speaks Spanish and Cripps does not. The record indicates that

Cripps reviewed the audio recordings and transcript translations from “beginning to end”

with Defendant. (Dkt. # 166, Pg. ID 996.) Defendant confirmed that he had time to

review all wiretap evidence. Id. Based on these facts, the court finds that Cripps gave

Defendant sufficient time to review and analyze the wiretap evidence.

Next, Defendant claims that Cripps erred by not hiring an expert translator. 

Although Cripps was free to hire a translator, hiring one would not necessarily have

been the professional norm. See Jones v. United States, 08-CV-255-WDS, 2011 WL

4499573 (S.D. Ill. Sept. 27, 2011) (“The Court cannot help but add that it is absurd for

petitioner to suggest he needed an expert to translate his own phone calls.”). 

Regardless, the record indicates that Cripps adequately raised concerns about

mistranslations without the aid of an expert translator. Further, to satisfy the prejudice

component of an ineffective assistance of counsel claim, 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.” Strickland, 466 U.S. at 694. Defendant

has not done so—his argument fails to demonstrate that by not hiring an expert

translator, Cripps’ effected the ultimate outcome of Defendant’s trial. 

Finally, Defendant argues that Cripps was unprepared for trial because he did

not interview the Government’s witnesses before trial. Defendant asserts:

Unfortunately, counsel did not investigate or interview any of the witnesses,

in spite of the fact that Mr. Statom told counsel the reason why he had no

other option, but to testify against Defendant, and the fact that there was a

criminal case in Texas, whose named offender was Javier Lara.

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(Dkt. # 202, Pg. ID 1627.) Defendant essentially claims that interviewing the

Government’s witnesses would have revealed impeachment evidence, a claim

discussed extensively in the next section. Nonetheless, in this section, the court notes

that it fails to see how this testimony would have aided Defendant in his defense, given

the ample evidence the Government presented against him. As an interview with

Statom or Lara-Tella would not have revealed exculpatory evidence, Defendant suffered

no prejudice. United States v. Jones, No. 00-90036, 2010 WL 4822811, at *3 (E.D.

Mich. Nov. 19, 2010). 

Defendant’s allegations that Cripps did not prepare for trial do not establish

ineffective assistance of trial counsel. 

b. Failure to Act as a Vigorous Advocate

Defendant also contends that Cripps failed to act as a vigorous advocate

because he failed to challenge the validity and admissibility of the Government’s wiretap

evidence. He alleges that police did not have probable cause to investigate his phone

conversations because they did not know his precise identity at the time the wiretap was

authorized, and instead identified a suspect named “Tacho.” He argues that his

nickname is “Cubano,” and therefore he could not be the “Tacho” referred to in the

wiretap authorization. The court does not agree. An individual’s nickname has little

bearing on probable cause. Moreover, one individual can have many nicknames;

Defendant alone was nicknamed Norona, “Cubano” (Dkt. # 202-1, Pg. ID 1741), and

“Peanut” (Dkt. # 166, Pg. ID 943). Defendant’s nickname had little relevance to trial

proceedings or the viability of a wiretap authorization. 

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Next, Defendant argues that the wiretap authorization was improperly executed

because it did not have the proper signature. Defendant does not offer sufficient proof

to support his allegation that the wiretap was not properly executed. He offers an

unsigned copy of the wiretap authorization, but this copy does not demonstrate that the

original wiretap authorization was not properly signed. The court reasonably relies on

the confirmation, made on the record at trial, that a district judge properly signed the

wiretap authorization. (Dkt. # 164, Pg. ID 629.) Even if, arguendo, the court accepted

that the wiretap authorization was not signed, there is caselaw suggesting that a clerical

error would not invalidate the wiretap authorization. See State v. Huguenin, 662 A.2d

708 (R.I. 1995). Moreover, if the omission of a signature rendered the wiretap

authorization invalid, police still executed the warrant in good faith and thus the wiretap

evidence was still admissible under the good-faith exception. See generally United

States v. Watson, 498 F.3d 429 (6th Cir. 2007) (holding that a clerical error did not

render a search invalid due to the good faith exception). Finally, assuming that Cripps

erred by not challenging admission of the Government’s wiretap evidence, Defendant

fails to establish that the evidence’s admission effected the outcome of his trial.

Defendant next asserts that Cripps committed a serious error by not impeaching

Javier Lara-Tella or Reginald Statom when they testified against Defendant. With

respect to Lara-Tella, Defendant asserts that he faced prosecution in Texas. Yet

criminal charges are improper for impeachment. Fed. R. Evid. 609; Price v. Thurmer,

514 F.3d 729, 731 (7th Cir. 2008). With respect to Statom, Defendant contends that

Cripps should have impeached him with inconsistent statements he made about his

relationship with Defendant and with information that the Government compelled Statom

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to testify by threatening to prosecute his child’s mother. In fact, the record shows that

Cripps did cross examine Statom about his inconsistent statements regarding his

relationship with Defendant as well as his interest in protecting his child’s mother. (Dkt.

# 166, Pg. ID 887.) Relatedly, Defendant says that Cripps should have impeached the

credibility of both Lara-Tella and Statom based on the fact that they were required to

testify as part of their plea deals. The record indicates that Cripps did just this. Cripps

highlighted Lara-Tella’s and Statom’s lack of credibility in his opening statement, cross

examinations, and closing statements. (Dkt. # 164, Pg. ID 734–49, 764–74, 860–61.) 

Throughout the trial, Cripps emphasized that Lara-Tella’s and Statoms’ testimonies

were self-interested and therefore untrustworthy. Id. In his closing statement, he even

concluded that “[n]either one of those witnesses are worthy of [the jury’s] consideration

beyond a reasonable doubt, which doesn’t leave much to this case.” (Dkt. # 166, Pg. ID

862.) Defendant’s claim that Cripps committed serious error by not impeaching Statom

and Lara-Tella has no factual basis. 

Defendant’s third claim—that Cripps failed to contest the voir dire of jurors on

grounds that the trial judge insufficiently explored jurors’ bias toward law

enforcement—also lacks merit. Defendant notes that ten jurors indicated ties to law

enforcement and “the record proved that there were absolutely no intent [sic] to follow

up on any of the questions or even a single inquiry to determine the position, bias,

motives, prejudice or impartiality of the prospect [sic] jurors.” (Dkt. # 202, Pg. ID 1611.) 

This blanket assertion lacks specificity and is unsubstantiated. The court therefore has

insufficient grounds to evaluate Defendant’s claim. Nonetheless, the court notes that

trial judges exercise wide discretion in the voir dire of potential jurors. See, e.g.,

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Rosales-Lopez v. United States, 451 U.S. 182, 189 (1981). Based on Defendant’s lack

of evidence to substantiate his claim and considering the wide deference granted to

judges when conducting jury voir dire, the court concludes that Cripps did not err by not

contesting voir dire. 

Defendant’s fourth allegation fares no better than his first three. Defendant

argues that Cripps failed to object when the court inserted commentary into the jury

instructions. Specifically, Defendant argues that by stating, “I don’t think that the

evidence points in that direction in this case. I don’t think that’s the scenario we have

here,” the court wrongly injected personal beliefs into jury instructions. (Dkt. # 181, Pg.

ID 1409.) In making his claim, Defendant extracts two sentences entirely out of context. 

The instruction as a whole states:

One last point about conspiracy. It's no defense to a criminal charge that

success was impossible because of circumstances the defendant did not

know about. And that means that you may find the defendant guilty of

conspiracy, even if it would have turned out that it would not have been

possible to complete the crime that he agreed to commit. This actually is

more appropriate in circumstances where the police were surrounding the

house and ready to swoop and mass arrests, and end the conspiracy right

then. That might have been impossible to carry out the aim of the

conspiracy. I don't think that the evidence points in that direction in this case.

I don't think that's the scenario we have here. But nonetheless, this is a true

statement of the law about the impossibility of success not being a defense.

Id. Given the context of the court’s comments, it is clear that the court merely intended

to explain to the jury the kind of case at issue. Thus, the court did not insert

inappropriate commentary into jury instructions and Cripps had no objection to raise and

could not have been ineffective in this regard. 

Finally, Defendant contends that Cripps failed to file a motion to sever

Defendant’s trial from that of his co-conspirators. However, district courts only sever

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cases when there is a “serious risk that a joint trial would compromise a specific trial

right of one of the defendants, or prevent the jury from making a reliable judgement

about guilt or innocence.” United States v. Martinez 432 F. App’x 526, 529-30 (6th Cir

2011). Defendant fails to explain what grounds Cripps could have raised that would

have justified severance. Moreover, Defendant does not establish that Cripps’ failure to

move for severance effected the outcome of the trial. 

In a hearing regarding Defendant’s request to terminate Cripps, the court

explained that “[f]rom my observation at trial, I can’t think of anything that [Cripps] did

that is incorrect or created a problem for [Defendant] at trial.” (Dkt # 158, Pg. ID 510.) 

The court maintains that opinion now. Defendant’s claims do not satisfy Strickland, and

accordingly, the court rejects Defendant’s claim that his trial attorney, Cripps, did not

provide ineffective assistance of counsel.

2. Ineffective Assistance of Appellate Counsel

Defendant claims that his appellate counsel, Robert Jensen, failed to provide

effective assistance of counsel because he did not meet Defendant in person to discuss

his case, frequently disagreed with Defendant about what issues to raise on appeal, and

failed to raise meritorious issues on appeal. Each argument lacks merit. 

Failure to meet in person does not constitute ineffective assistance of counsel. 

Kerman v. United States, 166 F. 3d 1214 (6th Cir. 1998) (finding no ineffective

assistance of counsel when client and counsel did not meet in person but

communicated through other means). Defendant’s own exhibits demonstrate that he

and Jensen communicated about his case via several letters. For example, Defendant

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submited to the court one letter he sent to Jensen, in which Defendant mentions past

letters that he sent to Jensen. (Dkt. # 202-2, Pg. ID 1823-28.) Jensen’s motion to

withdraw as counsel also corroborates that he communicated with Defendant via letters

and phone conversations. (Dkt. # 202-2, Pg. ID 1820-32.) Thus, the record refutes

Defendant’s claim that Jensen failed to communicate with his client.

Defendant’s argument that Jensen provided ineffective assistance of counsel by

frequently disagreeing with him about what approach to use on appeal does not warrant

relief. “The Sixth Amendment does not guarantee a ‘meaningful attorney-client

relationship.” Dixon v. Warden, S. Ohio Corr. Facility, 940 F. Supp 2d 614, 628 (S.D.

Ohio 2013) (citing Morris v. Slappy, 461 U.S. 1, 14 (1983). Clients are entitled to

representation, but they are not entitled to perfect agreement or even rapport with their

counsel. Id. Although Defendant frequently disagreed with Jensen’s approach to the

appeal, this disagreement does not qualify as ineffective assistance of counsel meriting

§ 2255 relief.

Defendant does not substantiate his third claim that Jensen failed to investigate

his case and thus he cannot satisfy the Strickland standard. However, Defendant

argues in a similar vein that Jensen failed to raise the following alleged issues on

appeal: the improper admission of wiretap evidence, the insufficient voir dire of jurors,

the insertion of inappropriate commentary into jury instructions, and the incorrect

calculation of Defendant’s sentence. Although Defendant may view these grounds as

“dead-bang winners” (Dkt. # 202, Pg. ID 1637 (quoting Coddington v. Langley, 202 F.

Supp 2d 687, 698 (E.D. Mich. 2002)), Jensen did not commit any serious error by not

raising these issues on appeal. As discussed supra, the court did not improperly admit

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wiretap evidence, insufficiently voir dire jurors, or improperly instruct jurors. A review of

the record also reveals that the trial court properly calculated Defendant’s sentence.

Defendant’s claims lack merit, and thus Jensen did not commit any serious error by not

raising these issues on appeal. 

Defendant has not shown that Jensen provided ineffective assistance of counsel. 

As such, Defendant’s first two claims of error—that he received ineffective assistance of

counsel from his trial attorney, David Cripps, and his appellate counsel, Robert

Jensen—both fail. 

B. Fair Trial Concerns

Defendant’s remaining five grounds of error allege he did not receive a fair trial. 

First, he asserts that an unlawfully executed wiretap violated his Fourth Amendment

right to privacy. Next, he alleges that the Government unlawfully obtained wiretap

evidence and that the court admitted this evidence improperly. Third, Defendant argues

that the trial court’s voir dire of jurors failed to examine how a juror’s feeling about law

enforcement might affect their judgment. Fourth, Defendant contends that the trial

judge inserted inappropriate commentary while instructing the jury, essentially “piercing

the veil” (Dkt. # 202, Pg. ID 1614) of judicial impartiality. Finally, Defendant claims that

because the indictment did not list the amount of cocaine involved in the conspiracy, he

did not receive fair notice of the charges against him and the court incorrectly calculated

his sentence.

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The Government responds that Defendant procedurally defaulted on all five of

these claims and that Defendant failed to assert “cause and prejudice” or “actual

innocence” sufficient to overcome the procedural default rule. The court agrees. 

1. Procedural Default

Section 2255 is not a substitute for direct appeal. See United States v.

Addonizio, 442 U.S. 178, 184 (1979). For this reason, when a defendant does not raise

a claim on appeal, he is generally barred from raising it in a § 2255 motion. Massaro v.

United States, 538 U.S. 500, 503 (2003).

The record does not contain any evidence that Defendant raised the five claims

regarding his fair trial concerns on appeal. See United States v. Soler-Norona, No. 10-

2027, slip. op. (6th Cir. Aug. 15, 2011). Still, Defendant asserts that he personally

raised the first four issues on appeal, but that the Sixth Circuit failed to acknowledge the

claims:

Defendant intended to raise th[ese] issue[s] in a pro se supplemental brief,

but it was too late. The Court of Appeals received the documents one day

after its order and opinion. The court did not take into consideration the fact

that the supplemental brief was submitted pursuant to the “Mail Box Rule.” 

(Dkt. # 202, Pg. ID 1564, 65, 67, 69, 71.) However, Defendant offers no evidence to

prove that he wrote or sent pro se supplemental briefing for his appeal and thus the

court must disregard his assertion. With respect to his fifth claim, Defendant admits that

he never raised it on appeal because “[he] did not have superseding indictment’s [sic]

transcripts.” (Dkt. # 202, Pg. ID 1577.) This explanation does not rebut the fact that

Defendant did not raise this issue on appeal, effectively procedurally defaulting the

claim. 

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Defendant has procedurally defaulted on all five of his fair trial claims. 

2. Cause, Prejudice, and Actual Innocence

In order to overcome the procedural default rule, a defendant may show cause

and actual prejudice. Bousley v. United States, 523 U.S. 614, 622 (1998). To

demonstrate cause and prejudice, a defendant must show that “some objective factor

external to the defense,” such as the development of new law, prevented him from

raising the claim earlier. Coleman v. Thompson, 501 U.S. 722, 753 (1991). A

defendant must also show that not raising the claim substantially disadvantaged his

case and infected his entire trial with error. United States v. Frady, 456 U.S. 152, 170

(1982). Alternatively, a defendant can overcome procedural default by proving he is

actually innocent. Bousley, 523 U.S. at 622. Although a claim of actual innocence

justifies an exception to procedural default, a defendant must establish actual innocence

by demonstrating that no reasonable juror could find him guilty. Id. As such, claims of

actual innocence are rare and exceptional. Murray v. Carrier, 477 U.S. 478, 496 (1986). 

Defendant offers two causes that he argues justify an exception to the procedural

default rule. First, Defendant cites the incompetence of his appellate counsel as the

cause that prevented him from raising these grounds in his appeal. To overcome

procedural default, a defendant must show cause that is objective and external to his

defense. Coleman, 501 U.S. at 753. Defendant’s opinion that his appellate counsel

was incompetent is quintessentially subjective. And, as discussed supra, it is an

opinion that the court already considered and does not share. More importantly,

counsel’s strategic choices, made while providing effective assistance of counsel, do

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not serve as cause sufficient to overcome procedural default. Murray, 477 U.S. at 488. 

Secondly, Defendant attempts to establish cause by pointing to his unconsidered pro se

brief and alleged lack of transcripts. This explanation also do not establish cause

sufficient to overcome procedural default. The timing of when pro se briefs were filed or

transcripts were requested was within Defendant’s control. As such, these choices are

internal to his defense and do not constitute an objective and external cause. See

McKCleskey v. Zant, 499 U.S. 467, 498 (1991) (holding that a defendant’s prolonged

investigation and late discovery of evidence is not an excuse sufficient to overcome

procedural default). Defendant cites no cause that would justify an exception to the

procedural default rule. Thus, the court need not consider any substantial prejudice to

Defendant’s case. 

Defendant does not directly claim actual innocence to justify why his procedurally

defaulted claims should be considered, but his motion contains suggestions of such a

contention. Regardless, Defendant could not demonstrate that no reasonable juror

could find him guilty given the substantial evidence that the Government presented

against him (e.g., the wiretap recordings wherein Defendant discusses drug deals and

his co-conspirators testimony that Defendant was involved in their large-scale drug

conspiracy). 

The court concludes that Defendant procedurally defaulted on his fair trial claims.

As such, Defendant’s five claims of error alleging that he did not receive a fair trial all

fail. 

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C. Appointment of Counsel, 

Application to Proceed In Forma Pauperis, and Transcript Requests

Defendant has also filed a motion for appointment of counsel, an application to

proceed in forma pauperis (IFP), and two requests for trial court transcripts. The court

will deny the motion, application, and requests. 

Under 28 U.S.C. § 2255 Defendant does not have a constitutional right to

counsel when pursuing collateral attack upon his conviction. Pennsylvania v. Finely,

481 U.S. 551, 555 (1987) (citation omitted) (“Our cases establish that the right to

appointed counsel extends to the first appeal of right, and no further. Thus, we have

rejected suggestions that we establish a right to counsel on discretionary appeals.”) 

Instead, 18 U.S.C. § 3006A provides that the court may appoint counsel to a person

seeking relief under 28 U.S.C. § 2255 if “the interests of justice so require.” 18 U.S.C.

§ 3006A(a)(2)(B). Considering that Defendant already benefitted from two courtappointed attorneys yet ample evidence supported the jury’s decision to convict him, the

court is not persuaded that the interests of justice require appointment of counsel. 

Defendant’s Motion for appointment of counsel will be denied.

In addition to his motion for appointment of counsel, Defendant presents an

application to proceed IFP and two motions requesting trial court transcripts. Because

any appeal from this action would not be taken in good faith and would be objectively

frivolous, the Court will deny Defendant leave to proceed IFP on appeal. See 28 U.S.C.

§ 1915(a)(3); Fed. R. App. P. 24. As for his transcript requests, under 28 U.S.C.

§ 753(f), a court may require the United States to pay for a transcript requested by a §

2255 movant:

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Fees for transcripts furnished in proceedings brought under section 2255 of

this title to persons permitted to sue or appeal in forma pauperis shall be paid

by the United States out of money appropriated for that purpose if the trial

judge or circuit judge certifies that the suit or appeal is not frivolous and the

transcript is needed to decide the issue presented by the suit or appeal.

28. U.S.C. § 753(f). However, any request for a free transcript prior to the filing of a

§ 2255 motion is premature and will be denied. United States v. Alcorn, 10 F. App’x

248, 249 (6th Cir. 2001). Defendant filed his transcript requests several months before

his § 2255 motion and thus they were premature and will be denied. 

Additionally, Defendant has not demonstrated a particularized need for the

documents he seeks. He merely asserts that he cannot afford the documents, that he is

proceeding pro se, and that the deadline for his motion is quickly approaching. (Dkt. #

198, Pg. ID 1548.) He adds that transcripts would “[en]able him to act promptly and

comply with the Court Rules and Statutes.” Id. Instead of describing his specific needs

for transcripts, it seems that Defendant merely speculates that there may be additional

grounds upon which he could move to vacate his sentence. (Dkt. # 198, Pg ID 1548.) 

If the court is not given the benefit of some definite allegation as to the nature

of the alleged illegal aspects of the judgment and sentences, it is but natural

to surmise that this is a fishing expedition and that the present vague

allegation of illegality is not made in good faith. 

Culbert v. United States, 325 F.2d 920, 922 (8th Cir. 1964) (quoting United States v.

Lawler, 172 F. Supp. 602, 605 (S.D. Tex. 1959); see also Bentley v. United States, 431

F.2d 250, 252 (6th Cir. 1970) (explaining that a defendant is not entitled to free

transcripts to search for grounds to file a motion under § 2255). Accordingly,

Defendant’s IFP application and transcript requests will be denied. 

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IV. CERTIFICATE OF APPEALABILITY

Federal Rule of Appellate Procedure 22 provides that an appeal may not proceed

unless a Certificate of Appealability (COA) is issued under 28 U.S.C. § 2253. A COA

may be issued “only if the applicant has made a substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c)(2). The “substantial showing” threshold is

satisfied when a defendant demonstrates “that reasonable jurist would find the district

court’s assessment of the constitutional claims debatable and wrong.” Slack v.

McDaniel, 529 U.S. 473, 484 (2000). In this case, the court concludes that reasonable

jurists would not debate the court’s assessment of Defendant’s claims. Therefore, the

court will deny a certificate of appealability.

V. CONCLUSION

For the Reasons stated above, IT IS ORDERED that Defendant’s motion to

vacate sentence (Dkt. # 202) is DENIED.

IT IS FURTHER ORDERED that Defendant’s motion for appointment of counsel

(Dkt. # 200) is DENIED.

IT IS FURTHER ORDERED that Defendant’s application to proceed in forma

pauperis (Dkt. # 201) is DENIED.

IT IS FURTHER ORDERED that Defendant’s requests for court transcripts (Dkt.

## 192, 198) are DENIED.

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Finally, IT IS ORDERED that a certificate of appealability is DENIED as to all of

Defendant’s claims.

 s/Robert H. Cleland 

ROBERT H. CLELAND

UNITED STATES DISTRICT JUDGE

Dated: July 23, 2014

I hereby certify that a copy of the foregoing document was mailed to counsel of record

on this date, July 23, 2014, by electronic and/or ordinary mail.

 s/Lisa Wagner 

Case Manager and Deputy Clerk

(313) 234-5522

S:\Cleland\JUDGE'S DESK\C1 ORDERS\08-20669-4.NORONA.Deny2255.rljr.2.wpd

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