United States District Court, W.D. Pennsylvania
December 8, 2005.
FRANK TODD McCLELLAN a/k/a Frank Neeszy, Petitioner,
UNITED STATES OF AMERICA, Respondent.
The opinion of the court was delivered by: TERRENCE McVERRY, District Judge
Before the Court is a certified order from the United States
Court of Appeals for the Third Circuit remanding this matter to
the District Court for the sole purpose of either issuing a
certificate of appealability or stating reasons why a certificate
of appealability should not issue. Crim. Doc. No. 78.
On November 22, 2004, petitioner Frank Todd McClellan
("McClellan") filed a Petition Under 28 U.S.C. § 2255 to Vacate,
Set Aside, or Correct Sentence by a Person in Federal Custody.
Crim. Doc. No. 48. On February 4, 2005, the Court appointed James
W. Kraus, Esquire to represent McClellan. On June 27, 2005, the
Court conducted an evidentiary hearing on the Petition. The
central issues at the hearing were whether Thomas Patton,
Assistant Federal Public Defender ("Attorney Patton"), who
represented McClellan during the sentencing phase of the
underlying criminal proceeding, rendered ineffective assistance
of counsel due to 1) his failure to adequately prepare for the
sentencing hearing, 2) his failure to challenge the application
of the career offender guideline, 3) his failure to argue in
favor of a downward departure from the career offender guideline,
and 4) his failure to file a notice of appeal after the
sentencing hearing, contrary to the constitutional protections
afforded by Strickland v. Washington, 466 U.S. 668 (1984) and
Roe v. Flores-Ortega, 528 U.S. 470 (2000). On November 11,
2005, the Court entered Findings of Fact, Conclusions of Law and
an Order of Court which denied the Petition. Crim. Doc. No. 72.
In its opinion, the Court found that McClellan had not
established that he was entitled to relief on any of the issues raised in the Petition
and/or at the hearing. The Order of Court stated that "[a]
certificate of appealability is DENIED as Frank Todd McClellan
has not made a substantial showing of a denial of a
Third Circuit Local Appellate Rule 22.2 provides, in relevant
part, as follows:
At the time a final order denying a petition under
28 U.S.C. § 2254 or § 2255 is issued, the district judge
shall make a determination as to whether a
certificate of appealability should issue. If the
district judge issues a certificate, the judge shall
state the specific issue or issues that satisfy the
criteria of 28 U.S.C. § 2253. If an order denying a
petition under § 2254 or § 2255 is accompanied by an
opinion or a magistrate judge's report, it is
sufficient if the order denying the certificate
references the opinion or report.
Third Circuit LAR 22.2.
The Third Circuit has provided the following guidance with
regard to certificates of appealability:
A [certificate of appealability] may issue only upon
"a substantial showing of the denial of a
constitutional right." 28 U.S.C. § 2253(c)(2). If "a
district court has rejected the constitutional claims
on the merits, the showing required to satisfy §
2253(c) is straightforward: The petitioner must
demonstrate that reasonable jurists would find the
district court's assessment of the constitutional
claims debatable or wrong." Slack v. McDaniel,
529 U.S. 473, 484 (2000). In addition, a [certificate of
appealability] must "indicate which specific issue or
issues satisfy" that standard.
28 U.S.C. § 2253(c)(3).
Lambert v. Blackwell, 387 F.3d 210, 230 (3d Cir. 2004), cert.
denied, 125 S. Ct. 2516 (2005); see also Szuchon v. Lehman,
273 F.3d 299, 312 (3d Cir. 2001).
The gravamen of McClellan's Petition was that he was denied his
constitutional right to effective assistance of counsel. In the
Findings of Fact and Conclusions of Law, the Court considered and
rejected, on the merits, each of McClellan's specific claims that
he was unconstitutionally denied the effective assistance of
counsel at the sentencing phase of the underlying criminal
proceeding.*fn1 For the following reasons, a certificate of
appealability should not issue in this matter. First, McClellan's
contention that Attorney Patton was ineffective because he failed to adequately prepare for the sentencing hearing is
belied by the fact that "Mr. Patton thoroughly researched
McClellan's case and the potential arguments available to him
prior to sentencing," and by the fact that "Mr. Patton also met
with McClellan and discussed the application of the career
offender guideline with him `on numerous occasions' prior to
sentencing." Findings of Fact at ¶¶ 6-7 (citation omitted).
Second, McClellan's contention that Attorney Patton was
ineffective for having failed to challenge the application of the
career offender guideline was found to be without merit. As the
Court observed, "Mr. Patton clearly had no basis in fact or law
to challenge the application of USSG § 4B1.1 to McClellan," and
"even if Mr. Patton were deficient in failing to so argue,
McClellan has not demonstrated actual prejudice because the
argument surely would not have prevailed." Conclusions of Law at
¶ 9. Third, McClellan's contention that Attorney Patton was
ineffective because he failed to argue in favor of a downward
departure from the career offender guideline was likewise without
merit. In this case "Mr. Patton clearly had no reasonable basis
in fact or law to argue that McClellan should receive a downward
departure pursuant to USSG § 4A1.3(b)(1)," and "even if Mr.
Patton were somehow deficient in failing to so argue, McClellan
has not demonstrated actual prejudice because the failure to
raise the issue had no adverse effect on McClellan's defense,
i.e., the argument would not have prevailed." Id. at ¶ 10.
Finally, McClellan's contention that Attorney Patton was
ineffective because he failed to file a notice of appeal after
the sentencing hearing was also rejected. As the Court observed,
"[t]he credible evidence of record reflects that Mr. Patton
consulted with McClellan about an appeal and McClellan indicated
that he did not wish to appeal," and "[a]ssuming, arguendo,
that Mr. Patton did not consult with McClellan about whether to
appeal, McClellan has nevertheless failed to demonstrate that Mr.
Patton's performance was deficient." Conclusions of Law at ¶
11-12. In the Court's view a certificate of appealability should
not issue as to any of the issues raised by McClellan because
reasonable jurists would not find the Court's ruling on
McClellan's constitutional claims to be debatable or wrong.
Slack v. McDaniel, 529 U.S. 473, 484 (2000).
NOW THEREFORE, this 8th day of December, 2005, for the
foregoing reasons it is hereby ORDERED, ADJUDGED and DECREED that
no certificate of appealability should issue as to any of the issues raised in this matter as petitioner Frank
Todd McClellan has not made a substantial showing of a denial of
his constitutional right to effective assistance of counsel.
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