MADELINE COX ARLEO, District Judge.
This matter has been opened to the Court by Petitioner Joseph Bigica's filing of a motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255. Pursuant to Fed. R. Civ. P. 78, upon review of all submissions, this matter is decided without oral argument, and for the reasons stated below, the Court will dismiss the motion and deny a certificate of appealability.
On May 9, 2012, Petitioner pled guilty to a two-count Information charging him with corruptly interfering with the due administration of the internal revenue laws, in violation of 26 U.S.C. § 7212(a), and conspiring to violate the Federal Election Campaign Act through the use of straw contributors to a federal election campaign, in violation of 18 U.S.C. § 371. Those charges were the result of two things: first, Petitioner's failure to pay any of the approximately $1,488,020 in federal taxes he owed for 1999 through 2006, despite his having earned $5,801,888 in gross income during that time, and, second, his contribution from 2006 to 2009 through straw donors of $98,600 to various federal election campaigns.
In Petitioner's plea agreement, the parties noted their positions on certain issues related to the calculations necessary under the United States Sentencing Guidelines ("U.S.S.G."). In particular, they stipulated to a total offense level of 22 for his tax offense and to a total offense level of 22 for his illegal campaign contribution offense. The government did not believe that the counts should be grouped for sentencing purposes, but Petitioner reserved the right to argue that they should be grouped. The parties also stipulated that Petitioner had demonstrated acceptance of responsibility and he thus qualified for a 3-level reduction in his offense level calculation.
The United States Probation Office prepared a presentence investigation report ("PSR") which accepted Petitioner's offense level for the tax evasion count as 22 and his offense level for the illegal campaign contributions count as 22. It added a 2-level enhancement because the counts were not grouped, but it "marginally afforded" Petitioner a 3-level offense-level reduction for acceptance of responsibility. (PSR ¶ 80.) That resulted in an adjusted offense level of 21. With Petitioner's Criminal History Category of I, the PSR provided his final Guidelines range as 37 to 46 month's imprisonment.
In his written response, Petitioner did not question the calculation, but did object to the analysis of his financial ability to pay restitution. Specifically, the PSR explained that
(Id. ¶ 232.) The PSR summarized Petitioner's objection, stating that he contended he made a "good faith effort" to provide the requested documentation, but explained that his financial situation was "complex." (Id. at 63.) Petitioner also claimed that he failed to provide complete financial statements because he was "somewhat disorganized" with respect to his financial documentation. (Id.) He also claimed that he was attempting to pay "pre-existing financial responsibilities," which apparently prevented him from beginning to pay his back-taxes. (Id.) The day before sentencing, the District Court ordered Petitioner to submit his 2011 tax return and other required financial information to the Probation Office. He complied with that order.
At sentencing, Petitioner argued that his two counts should have been grouped pursuant to U.S.S.G. § 3D1.2(d), which would have resulted in an offense level of 22 before any acceptance of responsibility reduction was granted. The District Court disagreed and concluded that the two counts should not be grouped because they involved different harms and were not of the same general type of conduct. Thus, at the stage of analysis before the "acceptance of responsibility" issue was addressed, the Court adopted an adjusted offense level of 24.
After hearing arguments, the sentencing court denied Petitioner the three-point reduction for "acceptance of responsibility." The court observed that it has "serious questions about it in this case" and that "[i]n 13 years on the bench I have never denied acceptance of responsibility," but "[i]n this case I'm inclined to." (ECF No. 12-2, Answer to Motion, Exhibit B ("Sentencing Transcript") 19:10-11; 12-13.) In reaching its decision, the sentencing court observed that in the time since Petitioner's plea, he had not paid any of the restitution owed to the IRS while continuing to live an extravagant lifestyle and that Petitioner had not been forthcoming with the Probation Office's requests for financial documentation. The sentencing court calculated Petitioner's Guidelines range as 51 to 63 months, and, after considering the factors set forth in 18 U.S.C. § 3553(a), sentenced Petitioner to 60 months' imprisonment.
Petitioner filed a timely notice of appeal on December 19, 2012. On appeal, Petitioner argued that the sentencing court erred by failing to group his two offenses for sentencing purposes and by not holding an evidentiary hearing pursuant to Federal Rule of Criminal Procedure 32 regarding his objection to the PSR's analysis of his financial status and statements that Petitioner had not been fully compliant with the Probation Office's requests. The Court of Appeals for the Third Circuit rejected Petitioner's arguments and affirmed the sentence. United States v. Bigica, 543 F. App'x 239, 242-44 (3d Cir. 2013). On March 13, 2014, Petitioner filed the present and timely motion pursuant to Section 2255. On March 19, 2014, this Court issued an order directing the Clerk of the Court to terminate the Petition and to send Petitioner a blank Section 2255 form, which Petitioner was to complete and submit within 30 days of the date of the order. Petitioner filed an amended motion on July 16, 2014. The Government filed its Response on October 14, 2014.
Title 28, United States Code, Section 2255 permits a court to vacate, correct, or set aside a sentence
28 U.S.C. § 2255.
A criminal defendant bears the burden of establishing his entitlement to § 2255 relief. See United States v. Davies, 394 F.3d 182, 189 (3d Cir. 2005). Moreover, as a § 2255 motion to vacate is a collateral attack on a sentence, a criminal defendant "must clear a significantly higher hurdle than would exist on direct appeal." United States v. Travillion, 759 F.3d 281, 288 (3d Cir. 2014) (citing United States v. Frady, 456 U.S. 152, 166 (1982)). In considering a motion to vacate a defendant's sentence, "the court must accept the truth of the movant's factual allegations unless they are clearly frivolous on the basis of the existing record." United States v. Booth, 432 F.3d 542, 545 (3d Cir. 2005) (internal quotation marks and citation omitted). "It is the policy of the courts to give a liberal construction to pro se habeas petitions." Rainey v. Varner, 603 F.3d 189, 198 (3d Cir. 2010). The Court may dismiss the motion without holding an evidentiary hearing if the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief. See 28 U.S.C. § 2255(b); Liu v. United States, No. 11-4646, 2013 WL 4538293, at *9 (D.N.J. Aug. 26, 2013) (citing Booth, 432 F.3d at 545-46).
Petitioner identifies the sole ground for relief in his motion as follows:
(ECF No. 4-1, Amended Motion Pt. 2 ("Mot. Br.") at 10.) Though Petitioner enumerates only this single ground for relief, he later asserts that his appellate counsel "was also grossly ineffective" by failing to raise this Rule 32 argument on appeal, "while instead making the obviously erroneous argument that Rule 32 required the sentencing judge to hold an evidentiary hearing separate from the sentencing hearing to resolve the controverted PSR issues of `fact.'" (Id.) Petitioner further states that appellate counsel was ineffective for failing to challenge the sentencing court's refusal to grant Petitioner the three-point reduction for acceptance of responsibility that was agreed to in his plea agreement. (Id.) The Court therefore construes Plaintiff to challenge (1) his trial counsel's performance in connection with Petitioner's sentencing, and (2) his appellate counsel's performance in pursuing his direct appeal. The Court addresses his claims in order as separate grounds for relief.
The Sixth Amendment guarantees the accused the "right . . . to have the Assistance of Counsel for his defense." U.S. Const. amend. VI. The right to counsel is the right to the effective assistance of counsel, and counsel can deprive a defendant of the right by failing to render adequate legal assistance. See Strickland v. Washington, 466 U.S. 668, 686 (1984). A federal prisoner's claim for ineffective assistance of counsel is properly raised for the first time in federal district court as a § 2255 motion rather than on direct appeal. See United States v. Garth, 188 F.3d 99, 107 n. 11 (3d Cir. 1999); United States v. Cocivera, 104 F.3d 566, 570 (3d Cir. 1996). The clearly established Supreme Court precedent governing ineffective assistance of counsel claims in the sentencing context is the two-pronged standard enunciated in Strickland. Under the first Strickland prong, a movant must demonstrate that "counsel's representation fell below an objective standard of reasonableness," with reasonableness being judged under professional norms prevailing at the time counsel rendered assistance. Strickland, 466 U.S. at 688. Under the second Strickland prong, a movant must demonstrate a reasonable probability that, but for counsel's error, the result of the sentencing hearing would have been different. Id. at 694. In order to sustain an ineffective assistance of counsel claim, the movant must make concrete allegations of actual prejudice and substantiate them or risk summary dismissal. See Wells v. Petsock, 941 F.2d 253, 259-260 (3d Cir. 1991); Dooley v. Petsock, 816 F.2d 885, 891-92 (3d Cir. 1987). The Strickland standard is highly demanding and leads to a "strong presumption that the representation was professionally reasonable." Strickland, 466 U.S. at 689. Furthermore, "[b]ecause failure to satisfy either prong defeats an ineffective assistance claim, and because it is preferable to avoid passing judgment on counsel's performance when possible, [Strickland, 466 U.S. at 697-98]," courts should address the prejudice prong first where it is dispositive of a petitioner's claims. United States v. Cross, 308 F.3d 308, 315 (3d Cir. 2002).
Petitioner alleges that his trial counsel rendered ineffective assistance by failing to compel the sentencing court to resolve certain factual disputes contained in the final PSR in accordance with Federal Rule of Criminal Procedure 32. Petitioner further argues that trial counsel's efforts to secure a three-point reduction for acceptance of responsibility were constitutionally ineffective. As discussed below, even if trial counsel's representation could be deemed objectively unreasonable (which it was not), Petitioner cannot demonstrate that but for the alleged errors, the result of his sentencing hearing would have been different. These contentions therefore are without merit.
Petitioner first challenges counsel's representation with respect to certain disputed facts contained in the final PSR. According to Petitioner, trial counsel should have moved the sentencing court to resolve these disputes as required by Federal Rule of Criminal Procedure 32, which provides:
Fed. R. Crim. P. 32(i)(3). Contrary to Petitioner's assertions, however, the record — as well as the ruling by the Court of Appeals for the Third Circuit — demonstrates that the sentencing court did comply with Rule 32 either by resolving the pertinent disputes or stating that resolution was unnecessary for purposes of determining Petitioner's sentence. In any event, Petitioner has not made concrete and substantiated allegations showing how any further discussion or resolution of these matters would have altered the outcome of his sentencing hearing and therefore has failed to satisfy Strickland's prejudice prong.
Petitioner alleges that trial counsel should have compelled the sentencing court to resolve seven disputed facts reported in the PSR: (1) that Petitioner was involved in illegal local campaign contributions "totaling at least $250,000" (PSR ¶ 218); (2) that Petitioner "made multiple jewelry purchases in the amount of $70,725" between 2006 and 2010 (PSR ¶ 225); (3) that the Probation Officer was unable to find an active sale listing for Petitioner's house, which Petitioner had reported as being listed for sale (PSR ¶ 181); (4) that Petitioner had not been fully compliant with the Probation Office's requests for financial information necessary to prepare the PSR (PSR ¶ 232); (5) that Petitioner owned or was associated with certain real estate (PSR ¶ 121); (6) that Petitioner was associated with multiple social security numbers (PSR at 2); and (7) that Petitioner was associated with certain "aliases" (id.). As discussed below, the sentencing court resolved the majority of these issues and did not rely on any of them for the purposes of determining Petitioner's sentence. Petitioner's claim of ineffective assistance therefore cannot succeed.
Petitioner states that, even after his written objection pointing out the inaccuracy, the final PSR included a statement that Petitioner had made "at least $250,000" in illegal local campaign contributions. (Mot. Br. at 22.) Petitioner's counsel did in fact raise a written objection to this allegation in his letter to the Probation Office, stating:
(ECF No. 4-2, Amended Motion, Exhibit A at 4.) Trial counsel also raised the issue at the sentencing hearing and, as at least partially acknowledged by Petitioner (Mot. Br. at 22), the sentencing court made a correction to the paragraph in question:
(Sentencing Transcript 4:10 — 5:23.) Thus, trial counsel advanced this issue both in written objections to the PSR and before the sentencing court and the sentencing court addressed and corrected the alleged inaccuracy. Petitioner states that this issue "was only resolved to some degree" at the sentencing hearing (Mot. Br. at 22), but does not state what further resolution was necessary or how trial counsel's alleged failure to do more, whatever that may have been, prejudiced Petitioner with respect to his sentencing.
Petitioner next highlights the contention in Paragraph 225 of the PSR that Petitioner "made multiple jewelry purchases in a total amount of $70,725" between April 2006 and October 2010. Paragraph 225 also includes Petitioner's objection to that allegation — which was raised by defense counsel in his letter
Petitioner alleges that "[t]his factual dispute was never actually resolved because the sentencing judge chose not to determine" whether the transaction in question was related to a loan, as Petitioner asserted, or involved jewelry purchases. (Mot. Br. at 23.) Petitioner does acknowledge, however, that the sentencing court concluded that "it's not necessary to the sentencing proceeding to determine the distinction between what was in fact interest and what was somehow a jewelry transaction."
Petitioner argues that a "much more serious and damaging assertion in the PSR was the investigator's conclusion that the residential property in which petitioner and his family lived was not on the market to be sold." (Mot. Br. at 24.) Petitioner asserts that this fact is particularly important because his defense regarding his failure to make restitution payments to the IRS after his guilty plea centered on his plan to sell the family home, thus reducing his monthly overhead, and to use the sale proceeds to pay a portion of his IRS debt. (Id.) This explanation, Petitioner argues, "would be nothing more than a sham" if the residence were not in fact being offered for sale, as implied by the PSR. (Id. at 25.) Petitioner argues that "[t]here would seem to be no reason or excuse for the trial attorney not to have insisted that the sentencing judge comply with Rule 32 and make a determination about this issue." However, trial counsel did address the status of Petitioner's residence and, importantly, the sentencing court did make a determination of the issue.
In the PSR, the investigator stated, "The undersigned was unable to find an active listing [for Petitioner's residence] in the New Jersey Multiple Listing Service (NJMLS) using the information available." (PSR ¶ 181.) In response to this statement, trial counsel lodged a written objection, stating:
(ECF No. 4-2, at 4 (emphasis in original).) This objection is reflected in Paragraph 181 of the final PSR. Though Petitioner states that trial counsel "did not even mention [this disputed issue] as one of his challenges to the PSR when he was given the opportunity to do so," (Mot. Br. at 25), counsel did address the sale of Petitioner's residence with the sentencing court — specifically, in response to the sentencing court's questions regarding Petitioner's acceptance of responsibility and failure to make restitution payments after his plea. See, e.g., Sentencing Transcript 22:21-22 ("What he's done, Judge, I mean his house is listed for sale."); 23:12-15 ("This — this house, it's listed for sale. Once that is sold, Judge, there will be, just the — what it's costing I think it's around $23,000 a month is what it costs, you know, to pay."). 52:7-12; 84:23 — 85:11.
The record further demonstrates that the sentencing court accepted Petitioner's assertions that the house was in fact for sale, though that fact did not sway its decision regarding Petitioner's sentence. During the colloquy at the hearing, the sentencing court inquired as to the status of Petitioner's house:
Sentencing Transcript 24:25 — 26:1. The sentencing court again acknowledged its acceptance of Petitioner's contention that the house was listed for sale later in the hearing:
Id. at 85:2-6 (emphasis added). Thus, as is the case with the issues already discussed, the sentencing court complied with the mandates of Rule 32 by resolving the purported dispute regarding the sale of Petitioner's home — and in fact resolved the dispute in his favor. Petitioner therefore has no basis on which to allege that trial counsel's representation was unreasonable or inadequate on this point.
In addition, though Petitioner forwards a somewhat more substantial prejudice argument on this issue than he does on the others, the argument is without merit. Petitioner argues that the implication that his house was not in fact listed for sale undercut his explanation for why he did not pay restitution after entering his guilty plea. But the sentencing court rejected this explanation despite accepting Petitioner's contention that the house was in fact listed for sale. In its Sentencing Opinion, the sentencing court observed:
U.S. v. Bigica, No. 12-cr-318, slip op. at 14, n.11 (D.N.J. Jan. 10, 2013). As discussed below, the sentencing court made a clear and explicit record regarding its decision not to grant Petitioner a three-point reduction for acceptance of responsibility — specifically with respect to Petitioner's failure to pay restitution between his plea and sentencing — and Petitioner's listing the house for sale was not a substantive or relevant fact in the court's consideration. Moreover, because the sentencing court resolved this alleged dispute in Petitioner's favor, Petitioner cannot demonstrate that his counsel's representation on this point prejudiced him and therefore has not satisfied the requirements of Strickland.
Petitioner asserts that "there were a number of charges and countercharges that revolved around the subject of petitioner having complied with or failed to honor requests from the Probation Department for financial data, bank statements, or other documents that would provide a relevant history of his financial status." (Mot. Br. at 27.) According to Petitioner, even though the final PSR and sentencing transcript "are riddled with divergent facts and differences of opinion about petitioner's compliance in this regard . . . there are no instances where the sentencing judge issued a finding to explicitly and definitively establish a Rule 32 record in this regard." (Id.) This contention is wholly inaccurate.
The record contains numerous declarations from the sentencing court regarding its conclusion that Petitioner was not in fact compliant with the Probation Office in its efforts to prepare the PSR, including but not limited to the following:
Sentencing Transcript 26:5-10.
Id. 28:1-13.
Id. 30:8-15.
Id. 81:6-19.
Id. 92:13-23. And finally:
Bigica, No. 12-cr-318, at 14. The sentencing court could not have been more explicit in its findings that Petitioner's compliance with the requests of the Probation Office was lacking. That being the case, trial counsel could not have afforded unreasonable or deficient representation in not attempting to compel the sentencing court to "issue[] a finding to explicitly and definitively establish a Rule 32 record in this regard" (Mot. Br. at 27) because that did in fact occur. And because an attempt to compel the court to make findings that it clearly had made would have been futile and moot, Petitioner could not have been prejudiced by his counsel's declining to undertake such an effort.
Finally, Petitioner alleges that the final PSR included additional statements to which he (through counsel) objected and upon which the sentencing court did not rule. First, Petitioner alleges that the PSR stated that "petitioner had employed three different social security numbers ("SSN")," which Petitioner argues is "a highly inflammatory accusation that if it were true, would be indicia of yet another serious federal offense." (Mot. Br. at 17.) Second, Petitioner argues that the investigator alleged "that petitioner was also using multiple `aliases.'"
Petitioner's arguments that trial counsel rendered constitutionally ineffective assistance on these matters are unavailing. Counsel made appropriate objections and clarifications on these points which were included in the final PSR. It was not unreasonable for counsel to decide not to raise again at sentencing matters that Petitioner calls "hardly momentous" (aliases issue) (Mot. Br. at 21) or that were "seemingly corrected for the most part in the revised PSR" (additional properties). (Id. at 8.) This is especially true given the sentencing court's clear focus on Petitioner's acceptance of responsibility and not on the "disputed" issues Petitioner raises in his Motion, as evidenced by the sentencing transcript:
Sentencing Transcript 19:10-16. Indeed, the sentencing court devoted a substantial amount of time on this issue at the hearing. In contrast, the sentencing court did not rely or base its sentencing decision on social security numbers, "aliases," or properties associated with Petitioner and trial counsel did not act unreasonably in not dwelling on these points at the hearing.
For the same reason, Petitioner cannot and has not established that he was prejudiced because trial counsel did not attempt to compel resolution of these matters. Petitioner makes the conclusory argument that "these incorrect facts and assertions went to the heart of [Petitioner's] character and the consideration of mitigation by the court in regard to the terms of his sentence." (Mot. Br. at 5.) He offers no evidence or support for this allegation, however. In fact, the sentencing court stated on the record that Petitioner's post-plea conduct and mindset, rather than his ownership of specific assets, jewelry, or other matters, was the court's primary concern and basis for its sentencing decision:
Sentencing Transcript 80:16-22 (emphasis added).
Id. 92:2-3; 10-12 (emphasis added). In sum, the factual discrepancies Petitioner raises — the listing of the family residence for sale, the jewelry pawning transaction, association with certain other properties, etc. — involve pre-plea conduct and specified assets that were not of particular concern to the sentencing court. In addition, as discussed above, any disputes regarding Petitioner's compliance with Probation — or lack thereof — were definitively resolved by the sentencing court.
Petitioner next argues that "trial counsel rendered constitutional ineffective assistance of counsel . . . by not adequately contesting the trial court's ruling that Petitioner was not entitled to `acceptance of responsibility' by using the considerable evidence that was provided to him to demonstrate that Petitioner was deserving of the three-point sentencing guideline reduction." (Mot. Br. at 10.) Specifically, Petitioner alleges that counsel did not make sufficient arguments that (1) Petitioner made an "offer and compromise" with the IRS prior to his criminal action, (2) Petitioner made payments to the IRS until the time of the criminal investigation, (3) Petitioner pled guilty to an Information, (4) the government agreed that Petitioner was entitled to a reduction based on acceptance of responsibility, (5) the final PSR concluded that Petitioner should be afforded the reduction, and (6) Petitioner submitted evidence of his good character and remorse for his actions. (Mot. Br. at 29-30.) Petitioner's arguments are without merit.
First, Petitioner's counsel engaged in substantial and thorough colloquy with the sentencing court on the issue of acceptance of responsibility. Counsel did, in fact, argue that Petitioner sought negotiations with the U.S. Attorney's Office for a plea agreement before there were plans to present this matter to a grand jury "because [Petitioner] he knew that what he had done was unacceptable and it was wrong." Sentencing Transcript 20:18-23. Counsel further argued that there were "several times" where Petitioner was "in tears for being so ashamed of what he ha[d] done" and that Petitioner stated that what he did was wrong and that he accepted responsibility.
The additional points raised by Petitioner are of no consequence. As discussed above, the sentencing court rested its decision with respect to Petitioner's acceptance of responsibility on his post-plea conduct — specifically, his failure to comply completely and honestly with the Probation Office and his failure to pay any restitution after his plea despite reporting an income in excess of $800,000 the previous year. In addition to the examples already cited, the sentencing court stated:
Sentencing Transcript 52:13-19.
Bigica, No. 12-cr-318, at 14.
Id. at 19; see also, Sentencing Transcript 23:4-9; 24:1-20; 26:6-13; 27:22-25; 28:1-13; 30:1-15; 80:14 — 81:14; 92:2-12. Because the sentencing court was concerned with Petitioner's post-plea conduct, had counsel argued that Petitioner made payments to the IRS prior to his plea, those arguments would have served only to highlight Petitioner's failure to make any restitution payments after his plea — a fact which Petitioner was unable to, and still does not, deny. In addition, the record was clear with respect to the Government's and Probation Office's positions on Petitioner's acceptance of responsibility and these points did not need reiteration.
Petitioner argues that his appellate counsel was ineffective "for failing to . . . include [Petitioner's Rule 32 argument] in the direct appeal, while making the obviously erroneous argument that Rule 32 required the sentencing judge to hold an evidentiary hearing separate from the sentencing hearing to resolve the controverted PSR issues of `fact.'" (Mot. Br. at 28.) Petitioner further argues that appellate counsel was ineffective for failing to "challenge in the direct appeal for the sentencing court's refusal to grant petitioner the three-point total reduction that was a part of his plea agreement." (Id.) For similar reasons as those expressed above, these claims are without merit.
First, Petitioner argues that appellate counsel should have raised the Rule 32 argument in his direct appeal. For the reasons discussed above with respect to trial counsel, appellate counsel did not render objectively unreasonable representation for not raising these matters on appeal and Petitioner has not shown prejudice resulting from appellate counsel's representation. Again, the majority of the issues Petitioner raises in his Motion either were resolved by the sentencing court, explicitly deemed not to warrant resolution, or not relied upon as a basis for Petitioner's sentence. As is the case with respect to trial counsel, appellate counsel cannot be said to have acted unreasonably by not arguing on appeal that the sentencing court should have resolved issues that it did resolve or make determinations that it did in fact make.
Similarly, Petitioner has not satisfied the Strickland standard for his claim that appellate counsel should have challenged the sentencing court's decision not to afford him the three-point reduction for acceptance of responsibility. On appeal, "[b]ecause the sentencing judge is in a unique position to evaluate a defendant's acceptance of responsibility, [the Court of Appeals] give[s] great deference on review to a sentencing judge's decision not to apply the two-level reduction for acceptance of responsibility to a particular defendant." United States v. Barr, 963 F.2d 641, 657 (3d Cir. 1992) (internal quotations and citations omitted). A sentencing court's determination whether a defendant is entitled to a reduction for acceptance of responsibility is reviewed for clear error. United States v. Harris, 751 F.3d 123, 126 (3d Cir. 2014) (citing United States v. Ceccarani, 98 F.3d 126, 129 (3d Cir. 1996)). Petitioner offers no argument as to how appellate counsel could or would have overcome this standard on appeal and, again, no substantive arguments regarding prejudice.
Indeed, the Court of Appeals touched on the sentencing court's consideration of Petitioner's acceptance of responsibility and Petitioner's inability to respond to the court's concerns:
Bigica, 543 F. App'x at 244 (emphasis added). As discussed above, Petitioner has not disputed that he did not pay restitution after entering his plea or that documents he provided to the Probation Office were incomplete, including his failure to submit his 2011 tax return until the sentencing court ordered him to do so. Given the high standard of review on appeal, the lack of substantive argument by Petitioner, and the Court of Appeal's brief consideration of the matter, Petitioner has not shown that the outcome of his appeal would have been different but for appellate counsel's declining to challenge the sentencing court's decision not to afford him an acceptance of responsibility reduction. Petitioner's claims that his appellate counsel rendered ineffective assistance will be denied.
Petitioner has not made a substantial showing of the denial of a constitutional right. Therefore, no certificate of appealability will issue pursuant to 28 U.S.C. § 2253(c)(1)(B). See Fed. R. App. P. 22(b)(1); 3d Cir. L.A.R. 22.2.
For the reasons set forth in this Opinion, Petitioner's motion is dismissed and the Court denies a certificate of appealability. An appropriate Order follows.
United States v. Bigica, 543 F. App'x 239, 244 (3d Cir. 2013).
Sentencing Transcript 55:7-13.
