LISA GODBEY WOOD, District Judge.
Movant Dexter Johnson objects to the Court's Report and Recommendation that his motion to vacate his sentence be denied. Doc. 45.
He also, however, makes fresh allegations that his plea waiver was involuntarily made, as counsel induced him to sign the Notice of Post-Conviction Consultation
Johnson explicitly "waive[d] his right to a direct appeal of his conviction and sentence on any ground . . . [except] if (1) the court enters a sentence above the statutory maximum, (2) the Court enters a sentence above the advisory Sentencing Guidelines range found to apply by the Court at sentencing; or (3) the Government appeals the sentence. Absent those exceptions, Defendant explicitly and irrevocably instructs his attorney not to file an appeal." Doc. 20 (plea agreement) at 10-11. None of those exceptions is applicable here: he was sentenced to 80 months' imprisonment, doc. 28, well below the' statutory maximum of 120 months' imprisonment and dead center of the advisory guideline range. Doc. 38 at 3 & 10; PSR at 167 (advisory range of 70 to 87 months). Johnson then swore under oath that counsel had fully explained his appeal waiver to him, and that he understood he was giving up his right to appeal his conviction and sentence when he signed the appeal waiver. Doc. 37 at 7-8, 13. In fact, the Court emphasized the waiver of his appeal rights, including the three exceptions to that waiver, and Johnson again swore he understood and agreed to those terms. Id. at 14. His contention now that he would have appealed had he known he could be sentenced up to 80 months (doc. 45 at 1-6) is not enough to overcome his solemn declaration in open court to the contrary. Blackledge, 431 U.S. at 73-74.
Though he contends that the Court's explanation is not enough to "absolve counsel from the duty to consult about the substance of the right to appeal" prior to having him sign the Notice of Post-Conviction Consultation, not one of the three exceptions to his signed, affirmed, and attested appeal waiver applied. He was sentenced four years below the statutory maximum and mid-Guidelines range, so his appeal waiver still applied in full. Absent any cause to appeal, counsel cannot be deficient for failing to file a meritless appeal. See Jones v. Barnes, 463 U.S. 745, 751 (1983) (there is no "constitutional right to compel appointed counsel to press [even] nonfrivolous points requested by the client") (emphasis added); McCoy v. Court of Appeals of Wisconsin, Dist. 1, 486 U.S. 429, 436 (1988) (the constitutional right to appellate representation does not include a right to present frivolous arguments to the court); Evitts v. Lucey, 469 U.S. 387, 394 (1985) (the appellate "attorney need not advance every argument, regardless of merit, urged by the appellant. . . .").
Aside from general dissatisfaction with his final 80-month sentence, it is unclear precisely what Johnson thinks ought to have been done better at the pleading stage. See docs. 35 & 45. But his regret that things didn't go as well as he might have hoped cannot sustain an ineffective assistance of counsel claim. See Freeman v. United States, 2011 WL 2680494 at *5 (N.D. Ga. June 10, 2011) ("All [m]ovant shows is that [he] would have preferred a more favorable plea agreement — such a showing could be made by almost anyone who has entered a guilty plea."). Accordingly, the Report and Recommendation of the Magistrate Judge is
Further, a prisoner seeking relief under 28 U.S.C. § 2255 must obtain a certificate of appealability ("COA") before appealing the denial of his application for writ of habeas corpus. 28 U.S.C. § 2253(c)(1)(B). This Court "must issue or deny a certificate of appealability when it enters a final order adverse to the applicant." Rule 11(a) to the Rules Governing Section 2255 Proceedings. This Court should grant a COA only if the prisoner makes a "substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). For the reasons set forth in the Report and Recommendation, and in consideration of the standards enunciated in Slack v. McDaniel, 529 U.S. 473, 482-84 (2000), movant has failed to make the requisite showing. Accordingly, a COA is
Doc. 40 at 5 n. 2 (emphasis added).