The opinion of the court was delivered by: McLAUGHLIN, Sean J., District Judge.
Presently pending before the Court is a document styled "Motion for Out of Time to Support Appellant Certificate of Appealabilty" filed by Anthony Jones, (ADefendant@) [ECF No. 382].
On January 10, 2006, Defendant and eight others were indicted on conspiracy and drug distribution charges. [ECF No. 1]. Pursuant to a plea agreement, Defendant pled guilty on July 25, 2006 [ECF No. 193] to the conspiracy charge and waived his direct appeal rights and his right to file a motion to vacate under 28 U.S.C. § 2255. [ECF No. 302] pp. 9-12; [ECF No. 305] pp. 5-6.
Prior to sentencing, the parties disputed the application of § 3B1.1 of the Sentencing Guidelines, which provided for an offense level increase due to the Defendant's leadership role in the conspiracy. On December 5, 2006, the Court conducted an evidentiary hearing to resolve the Government's objection to the recommendation in the Presentence Investigation Report that Defendant receive only a two-level enhancement in his offense level due to his leadership role in the drug trafficking conspiracy. [ECF No. 305]. Defendant objected to any enhancement in his offense level for his role in the conspiracy. Id. at pp. 55-56. At the conclusion of the testimony, we found that the evidence established that Defendant was a "central cog" in the conspiracy, and consequently, sustained the Government's objection, overruled the Defendant's objection, and applied a four-level increase to the Defendant's offense level. Id. at pp. 58-60. This resulted in a net offense level of 35, and with a criminal history category of VI, Defendant's offense level resulted in an advisory guideline range of 292 to 365 months imprisonment. Id. at p. 60.
Defendant was sentenced to 292 months imprisonment followed by supervised release for five years. Id. at pp. 60-72; [ECF No. 254].
Defendant appealed his sentence to the Third Circuit Court of Appeals on December 13, 2006. [ECF No. 260]. On January 17, 2008, the Third Circuit enforced the Defendant's appeal waiver, declined to review the substantive issues presented by the Defendant, and affirmed the sentence imposed by the Court. United States v. Jones, 261 Fed. Appx. 412 (3rd Cir. 2008). Defendant did not petition for certiorari to the Supreme Court.
On February 6, 2009, Defendant filed a motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255. [ECF No. 340]. Defendant argued that his sentencing counsel was ineffective in failing to object to the leadership role enhancement under § 3B1.1 on the basis that the Government had breached an alleged agreement not to seek the enhancement in return for his agreement to be debriefed and provide information. [ECF No. 340] pp. 11-17; [ECF No. 374] p. 13. Defendant further argued that his sentencing counsel was ineffective for failing to advance mitigating arguments at sentencing. [ECF No. 340] pp. 17-22; [ECF No. 374] pp. 13-14. A hearing was scheduled on the Defendant's motion and counsel was appointed to represent him. [ECF No. 357]. Defendant subsequently filed a request for appointment of new counsel due to a "disagreement about some issues" with his case. [ECF No. 362].
On August 13, 2010, following an evidentiary hearing, Defendant's request for appointment of new counsel and his § 2255 motion to vacate his sentence were denied by the Court. [ECF No. 374]. Defendant appealed this determination on August 20, 2010, and the Third Circuit remanded the matter for the limited purpose of this Court issuing a certificate of appealability or stating reasons why one should not issue. [ECF No. 365]. On September 3, 2010, we found:
After thoroughly reviewing Jones' 2255 motion, the government's response, the testimony taken at the evidentiary hearing, and the Court's August 13, 2010 Order, I conclude that a certificate of appealability is not warranted in this case.
Thereafter, on March 16, 2011, the Third Circuit similarly denied Defendant's request for a certificate of appealability stating:*fn1
The foregoing request for a certificate of appealability is denied because reasonable jurists would not find it debatable whether the request states a valid claim of the denial of a constitutional right and whether the district court was correct in its procedural rulings. See Slack v. McDaniel, 529 U.S. 473, 484 (2000). In his plea agreement, Jones waived his right to pursue relief under 28 U.S.C. 2255. Because Jones has failed to show that his waiver was not knowing and voluntary, or that enforcing the waiver provision would work a miscarriage of justice, that provision bars Jones's § 2255 motion. See United States v. Mabry, 536 F.3d 231, 237 (3d Cir. 2008). Further, reasonable jurists could not debate the District Court's conclusion that Jones failed to show that his counsel's representation fell below an objective standard of reasonableness. See Strickland v. Washington, 446 U.S. 668, 688 (1984).
[ECF No. 377]. The Third Circuit also denied his motion requesting transcripts and terminated his appeal. [ECF No. 378]. Defendant did not appeal this decision.
On May 16, 2011, Defendant filed the instant request for a certificate of appealabilty [ECF No. 382], and filed an affidavit in support with an attached "amendment" on May 20, 2011. [ECF No. 383]. In his request, Defendant advances the same arguments as those advanced in his original § 2255 motion. He further argues that the Court erred in denying his request for new counsel to represent him at the § 2255 hearing. Defendant contends that he did not receive this Court's September 3, 2010 denial of a certificate of appealability, and was unaware of the denial ...