JON P. McCALLA, District Judge.
Before the Court is a Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody ("§ 2255 Motion") filed by Movant, Sean Blake, Bureau of Prisons register number 23950-076, who is currently incarcerated at the Federal Correctional Institution Low in Forrest City, Arkansas. (§ 2255 Mot., Blake v. United States, No. 2:13-cv-02663-JPM-cgc (W.D. Tenn.), ECF No. 1; see Change of Address Notice, id., ECF No. 16.) For the reasons stated below, the Court DENIES the § 2255 Motion.
On January 5, 2010, a federal grand jury returned a four-count indictment charging that Blake unlawfully, knowingly, and intentionally distributed a mixture and substance containing a detectable amount of cocaine base (crack cocaine) in violation of 21 U.S.C. § 841(a)(1) on (1) September 3, 2009; (2) September 8, 2009; (3) September 17, 2009; and (4) September 23, 2009. (Indictment, United States v. Blake, No. 2:10-cr-20003-JPM-1 (W.D. Tenn.), ECF No. 3.) Pursuant to a written plea agreement, Blake appeared before the Court on August 3, 2011, and entered a guilty plea as to Count One. (Plea Agreement, id., ECF No. 48; Min. Entry, id., ECF No. 45.) As a condition of the plea, the United States dismissed Counts Two, Three, and Four. (Plea Agreement ¶ 1, id., ECF No. 48.) The factual basis for the charges is stated in the presentence investigation report ("PSR"):
(PSR ¶¶ 4-10, 13.)
At a hearing on December 19, 2011, the Court sentenced Blake to a total term of imprisonment of 151 months, to be followed by a four-year period of supervised release. (Min. Entry, United States v. Blake, No. 2:10-cr-20003-JPM-1 (W.D. Tenn.), ECF No. 57.)
On August 22, 2013, Blake filed a pro se Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody ("§ 2255 Motion"). (§ 2255 Mot., Blake v. United States, No. 2:13-cv-02663-JPM-cgc (W.D. Tenn.), ECF No. 1.) This motion presents the following ineffective assistance of counsel issues:
(§ 2255 Mot. at PageID 3-4.) Blake also asserts that the asserted grounds for relief were not previously presented because "[c]ounsel failed to present these issue[s] at sentencing and on [d]irect [a]ppeal." (Id. at 5.)
On June 19, 2014, the Court issued an order directing the Government to respond. (Order Directing Gov't to Respond, Blake v. United States, No. 2:13-cv-02663-JPM-cgc (W.D. Tenn.), ECF No. 2.) The Government filed its response on August 28, 2014. (Resp. to § 2255 Mot., id., ECF No. 5.) Blake filed a reply on June 26, 2015. (Reply, id., ECF No. 10.)
On January 28, 2016, Blake filed a motion to supplement his § 2255 Motion in light of the Supreme Court's decision in Johnson v. United States, 135 S.Ct. 2551 (2015). (Mot. to Suppl., id., ECF No. 11.) On February 2, 2016, the Court granted Blake's motion to supplement and directed the Government to supplement its response. (Order Granting Mot. to Suppl., id., ECF No. 12.) The Government responded in opposition to Blake's supplemental claim on February 8, 2016. (Resp. to § 2255 Suppl., id., ECF No. 13.) Blake filed a reply on March 2, 2016. (Reply, id., ECF No. 14.)
Pursuant to 28 U.S.C. § 2255(a),
"A prisoner seeking relief under 28 U.S.C. § 2255 must allege either: `(1) an error of constitutional magnitude; (2) a sentence imposed outside the statutory limits; or (3) an error of fact or law that was so fundamental as to render the entire proceeding invalid.'" Short v. United States, 471 F.3d 686, 691 (6th Cir. 2006) (quoting Mallett v. United States, 334 F.3d 491, 496-97 (6th Cir. 2003)).
"[A] § 2255 motion `is not a substitute for a direct appeal.'" Ray v. United States, 721 F.3d 758, 761 (6th Cir. 2013) (quoting Regalado v. United States, 334 F.3d 520, 528 (6th Cir. 2003)). "[N]onconstitutional claims that could have been raised on appeal, but were not, may not be asserted in collateral proceedings." Stone v. Powell, 428 U.S. 465, 477 n.10 (1976). "Defendants must assert their claims in the ordinary course of trial and direct appeal." Grant v. United States, 72 F.3d 503, 506 (6th Cir. 1996).
Even constitutional claims that could have been raised on direct appeal, but were not, are barred by procedural default unless the defendant demonstrates cause and prejudice sufficient to excuse his failure to raise these issues previously. El-Nobani v. United States, 287 F.3d 417, 420 (6th Cir. 2002) (withdrawal of guilty plea); Peveler v. United States, 269 F.3d 693, 699-700 (6th Cir. 2001) (new Supreme Court decision issued during pendency of direct appeal); Phillip v. United States, 229 F.3d 550, 552 (6th Cir. 2000) (trial errors). Alternatively, a defendant may obtain review of a procedurally defaulted claim by demonstrating that he is "actually innocent." Bousley v. United States, 523 U.S. 614, 622 (1998).
After a § 2255 motion is filed, it is reviewed by the Court and, "[i]f it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief, the judge must dismiss the motion." Rule 4(b), Rules Governing Section 2255 Proceedings for the United States District Courts ("§ 2255 Rules"). "If the motion is not dismissed, the judge must order the United States attorney to file an answer, motion, or other response within a fixed time, or to take other action the judge may order." Id. The movant is entitled to reply to the Government's response. Rule 5(d), § 2255 Rules. The Court may also direct the parties to provide additional information relating to the motion. Rule 7, § 2255 Rules.
"In reviewing a § 2255 motion in which a factual dispute arises, `the habeas court must hold an evidentiary hearing to determine the truth of the petitioner's claims.'" Valentine v. United States, 488 F.3d 325, 333 (6th Cir. 2007) (quoting Turner v. United States, 183 F.3d 474, 477 (6th Cir. 1999)). "[N]o hearing is required if the petitioner's allegations cannot be accepted as true because they are contradicted by the record, inherently incredible, or conclusions rather than statements of fact." Id. (quoting Arredondo v. United States, 178 F.3d 778, 782 (6th Cir. 1999)). Where the judge considering the § 2255 motion also presided over the criminal case, the judge may rely on his recollection of the prior case. Blanton v. United States, 94 F.3d 227, 235 (6th Cir. 1996); see also Blackledge v. Allison, 431 U.S. 63, 74 n.4 (1977) ("[A] motion under § 2255 is ordinarily presented to the judge who presided at the original conviction and sentencing of the prisoner. In some cases, the judge's recollection of the events at issue may enable him summarily to dismiss a § 2255 motion . . . ."). The movant has the burden of proving that he is entitled to relief by a preponderance of the evidence. Pough v. United States, 442 F.3d 959, 964 (6th Cir. 2006).
"If claims have been forfeited by virtue of ineffective assistance of counsel, then relief under § 2255 would be available subject to the standard of Strickland v. Washington, 466 U.S. 668 . . . (1984)." Grant, 72 F.3d at 506. To demonstrate deficient performance by counsel, a petitioner must demonstrate that "counsel's representation fell below an objective standard of reasonableness." Strickland, 466 U.S. at 687-88.
Harrington v. Richter, 562 U.S. 86, 104 (2011) (citations omitted). To demonstrate prejudice, a prisoner must establish "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.
The two-part test stated in Strickland applies to challenges to guilty pleas based on the ineffective assistance of counsel. Hill v. Lockhart, 474 U.S. 52, 57-58 (1985). "Where, as here, a defendant is represented by counsel during the plea process and enters his plea upon the advice of counsel, the voluntariness of the plea depends on whether counsel's advice `was within the range of competence demanded of attorneys in criminal cases.'" Id. at 56 (quoting McMann v. Richardson, 397 U.S. 759, 771 (1970)). "[T]o satisfy the `prejudice' requirement, the defendant must show that there is a reasonable probability that, but for counsel's errors," the outcome of the plea process would have been different. Id. at 59; see also Padilla v. Kentucky, 559 U.S. 356, 372 (2010) ("[T]o obtain relief on this type of claim, a petitioner must convince the court that a decision to reject the plea bargain would have been rational under the circumstances.").
In his initial § 2255 Motion and supplement to the § 2255 Motion, Blake raises three ineffective assistance of counsel claims and a Johnson claim. Blake asserts that his trial counsel, David Bell, was ineffective for (1) failing present mitigating evidence of his troubled childhood and mental health problems at sentencing (Mem. in Supp. of § 2255 Mot. at 3-11, Blake v. United States, No. 2:13-cv-02663-JPM-cgc (W.D. Tenn.), ECF No. 1-1); (2) failing to interview and call family or expert witnesses who could have testified on his behalf at sentencing (id. at 11-16); and (3) abandoning a challenge to the career offender enhancement by failing to raise the issue on direct appeal (id. at 17-23). Blake also asserts that the holding in Johnson is retroactive and thus applies to render his convictions for attempted aggravated robbery and attempted murder unconstitutional. (Mot. to Suppl. at 3-8, Blake v. United States, No. 2:13-cv-02663-JPM-cgc (W.D. Tenn.), ECF No. 11.) The Court addresses each claim below.
First, Blake asserts that, at sentencing, Bell "abandoned the argument that [Blake's] childhood and mental health problems contributed to his criminal history." (Mem. in Supp. of § 2255 Mot. at 4-11, id., ECF No. 1-1.) Blake also asserts that Bell did not call any of the family members present at the sentencing hearing to testify about Blake's mental health and "rough childhood" as mitigating evidence. (Id. at 5-6.) The Government asserts that Blake's mental health problems were discussed in depth in the PSR and at the sentencing hearing. (Resp. to § 2255 Mot. at 5, Blake v. United States, No. 2:13-cv-02663-JPM-cgc (W.D. Tenn.), ECF No. 5.) Further, the Government asserts that the family members present chose not to testify. (Id. at 5.) The Court finds that Blake's claim for ineffective assistance as to Bell's failure to present mitigating evidence does not meet the Strickland standard.
Blake fails to demonstrate that the alleged failure to present mitigating evidence resulted in prejudice. The PSR described Blake's family history and mental health problems in great detail. (PSR ¶¶ 60-65, 77-85.) Moreover, during the sentencing hearing, Bell had a lengthy discussion with the Court regarding Blake's family and mental health history. (Sentencing Hr'g Tr. 31:22-36:15, Dec. 19, 2011, United States v. Blake, No. 2:10-cr-20003-JPM-1 (W.D. Tenn.), ECF No. 62.) The Court considered "contributing factors," including Blake's criminal history, substance abuse, and mental health issues (id. at 40:4-51:9), and determined that a sentence of 151 months, or twelve years and seven months, instead of a sentence of fifteen years, was appropriate. (Id. at 54:15-55:3 ("That's a lot of time, but it's because of the need of society to be as safe as possible recognizing the facts that we're dealing with here. So I have reduced the sentence in the sense of not being at the high level because there's so many other contributing components . . . .").) Thus, in light of the Court's balancing of the mitigating evidence against public safety concerns, Blake cannot establish that further efforts on Bell's part to pursue the issue of mitigation would actually have affected the sentence he ultimately received. See United States v. Boyd, 259 F.Supp.2d 699, 705 (W.D. Tenn. 2003). Blake's sentence of 151 months was the lowest recommended sentence under the Sentencing Guidelines. See supra n.1. Blake is therefore not entitled to relief on this ineffective assistance of counsel claim.
Second, Blake asserts that Bell stated in a December 5, 2011, motion
"[W]hether to call a witness . . . [is a] classic question[] of trial strategy that merit[s] Strickland deference." Rayborn v. United States, 489 F. App'x 871, 878 (6th Cir. 2012). Because "[t]he burden rests on the defendant to overcome the presumption that the challenged conduct might be considered sound trial strategy," id., Blake must establish that the failure to call witnesses would not be a sound trial strategy. The position paper states only that "the defendant may call some witnesses at his sentencing hearing" and does not suggest that Bell misrepresented to Blake or to the Court that he would call certain witnesses. (Def's Position Paper at 1, United States v. Blake, No. 2:10-cr-20003-JPM-1 (W.D. Tenn.), ECF No. 53 (emphasis added).) Bell's decision not to call expert witnesses to testify about Blake's mental health is not unreasonable in light of the psychological evaluation already conducted to determine Blake's competency to stand trial (see Evaluation, Blake v. United States, No. 2:13-cv-02663-JPM-cgc (W.D. Tenn.), ECF No. 1-9) and the medical records already in the record (see Disability Report, United States v. Blake, No. 2:10-cr-20003-JPM-1 (W.D. Tenn.), ECF No. 53-2). Additionally, Bell's decision not to call Blake's family members was governed by the family members' decision not to testify at the sentencing hearing. (See Sentencing Hr'g Tr. 34:15-18, Dec. 19, 2011, id., ECF No. 62 ("None of them want to address the court, they're a little nervous and intimidated by the whole process.").) Bell also asserts that Blake "did not wish for [Bell] to call them as witnesses against their will." (Bell Aff. ¶ 7, Blake v. United States, No. 2:13-cv-02663-JPM-cgc (W.D. Tenn.), ECF No. 5-1.) Two unauthenticated affidavits of Blake's mother and brother, submitted by Blake as exhibits to his § 2255 Motion, do not directly contradict Bell's assertion that the family members chose not to testify at the time of the sentencing hearing. (See Sherry Blake Aff., id., ECF No. 1-3; Carlos Blake Aff., id., ECF No. 1-4.) Thus, Blake's claim of ineffective assistance as to the failure to call witnesses does not meet the Strickland standard because it was objectively reasonable for Bell not to call expert witnesses or unwilling fact witnesses at the sentencing hearing. Further, even if Bell's representation had been deficient, Blake cannot establish that the additional testimony would have affected his sentence. While Bell asked for a downward variance to seventy-six months (see Def.'s Position Paper at 6, United States v. Blake, No. 2:10-cr-20003-JPM-1 (W.D. Tenn.), ECF No. 53), the Court declined for the reasons stated and imposed a sentence at the lower end of the Sentencing Guidelines. (See generally Sentencing Hr'g Tr. 24:14-55:8, Dec. 19, 2011, id., ECF No. 62; see also Boyd, 259 F. Supp. 2d at 705 ("[defendant] cannot establish that the Court would have indeed granted the departure . . . and thus cannot establish prejudice").
In a third unauthenticated affidavit, Georgette Walls states that she "did not testify because [she] was not prepared, interviewed or asked any questions by [Bell] before [December 19, 2011] about Sean Blake's childhood and his mental health problems." (Walls Aff. ¶ 2, Blake v. United States, No. 2:13-cv-02663-JPM-cgc (W.D. Tenn.), ECF No. 1-5.) The Court considers next whether the failure to interview witnesses constituted ineffective assistance of counsel.
Blake cites to capital cases in which defense counsel's failure to interview witnesses constituted ineffective assistance. (See, e.g., Mem. in Supp. of § 2255 Mot. at 13, 15, id., ECF No. 1-1.) Capital cases are distinguishable, however, because "the Constitution requires that `the sentencer in capital cases must be permitted to consider any relevant mitigating factor.'" Porter v. McCollum, 558 U.S. 30, 42 (2009) (quoting Eddings v. Oklahoma, 455 U.S. 104, 112 (1982)). In such cases, it is unreasonable to discount relevant mitigating factors such as childhood trauma and mental health issues; doing so also potentially results in prejudice where the defendant would have received a sentence other than death. See id. at 42-44.
Bell asserts that he interviewed Blake's mother, Sherry Blake, "extensively" prior to the sentencing hearing. (Bell Aff. ¶ 9, Blake v. United States, No. 2:13-cv-02663-JPM-cgc (W.D. Tenn.), ECF No. 5-1.) Bell does not assert that he interviewed Georgette Walls. Regardless, Bell's failure to interview certain of Blake's family members was not deficient under Strickland, since the Court received other evidence detailing Blake's family history and mental health issues. See United States v. Brown, 283 F. App'x 63, 65-66 (3d Cir. 2008) (finding that it was objectively reasonable for counsel not to interview the defendant's family members when additional testimony from them would not have assisted the defendant's case). Blake also cannot establish that, had Bell interviewed Walls or any additional family members, Blake would have received a different sentence. Thus, Blake's claim of ineffective assistance as to the failure to interview witnesses does not meet the Strickland standard. Blake is therefore not entitled to relief on this ineffective assistance of counsel claim.
Third, Blake asserts that Bell was ineffective for abandoning the issue of Blake's career offender classification on appeal. (Mem. in Supp. of § 2255 Mot. at 17-23, Blake v. United States, No. 2:13-cv-02663-JPM-cgc (W.D. Tenn.), ECF No. 1-1; see also United States v. Blake, 496 F. App'x at 585 n.2 ("Blake does not currently challenge his status as a career offender before [the Sixth Circuit].").)
"Although a defendant . . . may be able to challenge his or her prior convictions as void . .. through state channels seeking post conviction relief, attempting to do so during sentencing for unrelated crimes in federal court is an impermissible collateral attack." United States v. Ruvalcaba, 627 F.3d 218, 222 (6th Cir. 2010); see also United States v. Davis, 98 F. App'x 419, 420 (6th Cir. 2004) ("a defendant in a federal sentencing proceeding . . . has no right to attack collaterally a prior conviction which was not obtained in violation of his right to counsel" (citing Custis v. United States, 511 U.S. 485, 495-97 (1994)). "The appropriate means to attack a prior state court conviction is through state court proceedings and then, if necessary, through federal habeas corpus proceedings." Davis, 98 F. App'x at 421. Because Blake's underlying convictions had not been adjudicated illegal through state or federal habeas corpus proceedings, it was not objectively unreasonable for Bell not to challenge Blake's career offender classification on appeal. Such a challenge would have been inappropriate. Thus, Blake's claim of ineffective assistance as to the failure to challenge his career offender enhancement does not meet the Strickland standard. Blake is therefore not entitled to relief on this ineffective assistance of counsel claim.
Blake may appropriately challenge his career offender classification in the instant case for habeas relief. See id. Blake asserts that the Supreme Court's ruling in Johnson v. United States applies to his prior convictions and requests that he be resentenced in light of Johnson. (See generally Mot. to Suppl., Blake v. United States, No. 2:13-cv-02663-JPM-cgc (W.D. Tenn.), ECF No. 11.) Blake asserts that his two prior Tennessee state convictions for attempted aggravated robbery and attempted second-degree murder are no longer consider crimes of violence for purposes of sentencing enhancement. (Id. at 3-7.) At least two of Blake's prior convictions, however, are beyond the scope of the residual clause to which the Johnson holding applies and remain eligible convictions for career offender status.
The ACCA provides that:
18 U.S.C. § 924(e)(1).
"Violent felony" is defined by the ACCA as a felony "that (i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or (ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another." 18 U.S.C. § 924(e)(2)(B).
The Supreme Court held in Johnson that the residual clause of the ACCA, encompassing all felonies that "involve[] conduct that presents a serious potential risk of physical injury to another," 18 U.S.C. § 924(e)(2)(B)(ii), was unconstitutionally vague and that the application of the residual clause to increase a sentence violated the Due Process Clause. 135 S.Ct. 2551, 2557 (2015). The Johnson decision applies only to the residual clause and "does not call into question application of the Act to the four enumerated offenses, or the remainder of the Act's definition of a violent felony." Id. at 2563.
The Supreme Court has made Johnson's rule retroactive to cases on collateral review. Welch v. United States, 136 S.Ct. 1257, 1265 (2016) ("Johnson is thus a substantive decision and so has retroactive effect . . . ."); see also In re Watkins, 810 F.3d 375, 384 (6th Cir. 2015) ("Johnson's rule [is] categorically retroactive to cases on collateral review"). Although Watkins involved a sentencing enhancement under the ACCA, and not the Sentencing Guidelines, the Sixth Circuit has treated the "identically worded" residual clause of U.S.S.G. § 4B1.2(a)(2)
Blake qualified as a career offender under § 4B1.1 in relevant part because he "has at least two prior felony convictions for controlled substance offenses or crimes of violence." (PSR ¶ 23.) The prior convictions used to qualify Blake as a career offender were: a 1997 Tennessee conviction for attempted aggravated robbery (PSR ¶ 34); a 1997 Tennessee conviction for attempted second-degree murder (id. ¶ 36); and a 2008 Tennessee conviction for possession of cocaine with intent to manufacture, deliver, or sell (id. ¶ 38).
The conviction for possession of cocaine with intent to manufacture, deliver, or sell is a controlled substance offense to which Johnson's holding does not apply.
Accordingly, because Blake is not entitled to relief on any of the ineffective assistance of counsel issues raised in his § 2255 Motion or the Johnson claim raised in his subsequent amendment to the § 2255 Motion, the Court DENIES the § 2255 Motion. Judgment shall be entered for the Government.
Twenty-eight U.S.C. § 2253(a) requires the district court to evaluate the appealability of its decision denying a § 2255 motion and to issue a certificate of appealability ("COA") "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2); see also Fed. R. App. P. 22(b). No § 2255 movant may appeal without this certificate. The COA must indicate the specific issue(s) that satisfy the required showing. 28 U.S.C. § 2253(c)(3). A "substantial showing" is made when the movant demonstrates "that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were `adequate to deserve encouragement to proceed further.'" Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)); see also Henley v. Bell, 308 F. App'x 989, 990 (6th Cir. 2009) (per curiam) (same). "[A] COA does not require a showing that the appeal will succeed." Miller-El, 537 U.S. at 337 ("[A] court of appeals should not decline the application for a COA merely because it believes the applicant will not demonstrate an entitlement to relief."); Caldwell v. Lewis, 414 F. App'x 809, 814-15 (6th Cir. 2011) (same). Courts should not issue a COA as a matter of course. Miller-El, 537 U.S. at 337 ("Our holding should not be misconstrued as directing that a COA always must issue.").
There can be no question that the issues raised in Blake's § 2255 Motion are meritless for the reasons previously stated. Because any appeal by Blake on the issues raised in his § 2255 Motion does not merit review, the Court DENIES a certificate of appealability.
The Sixth Circuit has held that the Prison Litigation Reform Act of 1995, 28 U.S.C. §§ 1915(a)-(b), does not apply to appeals brought under § 2255. Kincade v. Sparkman, 117 F.3d 949, 951 (6th Cir. 1997). Rather, to appeal in forma pauperis in a § 2255 case, and thereby avoid the appellate filing fee required by 28 U.S.C. §§ 1913 and 1917, the prisoner must obtain pauper status pursuant to Federal Rule of Appellate Procedure 24(a). Id. at 952. Rule 24(a) provides that a party seeking pauper status on appeal must first file a motion in the district court, along with a supporting affidavit. Fed. R. App. P. 24(a)(1). Rule 24(a) also provides, however, that if the district court certifies that an appeal would not be taken in good faith, or otherwise denies leave to appeal in forma pauperis, the prisoner must file his motion to proceed in forma pauperis in the appellate court. See Fed. R. App. P. 24(a)(3)-(5).
In this case, for the same reasons the Court denies a certificate of appealability, the Court determines that any appeal would not be taken in good faith. It is therefore CERTIFIED, pursuant to Federal Rule of Appellate Procedure 24(a), that any appeal in this matter would not be taken in good faith. Leave to appeal in forma pauperis is DENIED.
Because he had at least two prior felony convictions for controlled substance offenses or crimes of violence, however, Blake was sentenced as a career offender under U.S.S.G. § 4B1.1. (Id. ¶ 23; see id. ¶¶ 34, 36, 38.) Pursuant to U.S.S.G. § 4B1.1(b)(C), the offense level was 32 and, after a three-level reduction for acceptance of responsibility, the total offense level was 29. (Id. ¶¶ 23-25; see id. ¶ 106.) The guideline sentencing range was 151 to 188 months. (Id. ¶ 107.) The statutory maximum for a violation of 21 U.S.C. § 841(a)(1) is no more than 240 months. (Id. ¶ 106.)
U.S.S.G. § 4B1.2(a).