United States District Court, D. New Mexico
Rayvell Vann, pro se.
M. Walsh, Assistant United States Attorney (James D. Tierney,
Acting United States Attorney), Albuquerque, New Mexico, for
FIRST AMENDED ORDER ADOPTING PROPOSED FINDINGS AND
RECOMMENDED DISPOSITION OF THE MAGISTRATE JUDGE
MATTER comes on for consideration of Defendant's
Responses [Objections] to Proposed Findings and Recommended
Disposition filed September 15, 2017 (Doc. 15,
1:16-cv-01204-PJK-KRS; Doc. 287, 1:12-cr-00966-PJK-1). In
accordance with 28 U.S.C. § 636(b)(1)(B), this case was
referred to Magistrate Judge Kevin R. Sweazea who recommended
that Mr. Vann's Motion to Vacate, Set Aside, or Correct
Sentence under 28 U.S.C. § 2255 be denied and the case
be dismissed with prejudice. (Doc. 14, 1:16-cv-01204-PJK-KRS;
Doc. 286, 1:12-cr-00966-PJK-1).
jury trial, Mr. Vann was convicted of possession with intent
to distribute phenycyclidine (PCP) and codeine. He was
sentenced to 180 months' imprisonment and eight
years' supervised release. His convictions were affirmed on
direct appeal. United States v. Vann, 776 F.3d 746
(10th Cir. 2015). Mr. Vann argues that the magistrate judge
should have determined that his counsel was ineffective by
not calling three witnesses, failing to adequately
cross-examine witnesses and commenting on the testimony, and
not allowing him to testify. To prove ineffective assistance
of counsel Mr. Vann must demonstrate deficient performance
and prejudice. Strickland v. Washington, 466 U.S.
668, 687 (1984). The court agrees with the magistrate judge
that Mr. Vann has not satisfied these requirements.
as the claim that his counsel did not allow him to testify,
Mr. Vann was hardly a reticent or inexperienced defendant,
and had he testified, the government would have impeached him
with his prior convictions and his interview statements. Be
that as it may, Mr. Vann has never articulated what his
testimony would have been; therefore, he cannot demonstrate a
reasonable probability that the outcome of this proceeding
would have been different. United States v. Nguyen,
399 F. App'x 402, 408-09 (10th Cir. 2010).
court further agrees with the magistrate judge that Mr. Vann
has procedurally defaulted his claim under United States
v. Alleyne, 133 S.Ct. 2151 (2013). In his objections,
Mr. Vann argues that this claim is really one for ineffective
assistance of appellate counsel. Regardless, the claim is
without merit because Mr. Vann cannot demonstrate deficient
performance or prejudice: the district court found no facts
which would raise the minimum penalty for either offense. Mr.
Vann was sentenced within the statutory range for each
offense of conviction (not above a certain minimum or in
excess of the maximum); Alleyne does not apply.
court has reviewed the § 2255 motion, the
government's response, the proposed findings and
recommended disposition by the magistrate judge as well as
Mr. Vann's objections and the goverment's response.
The court has made a de novo determination of all matters to
which objection is made. 28 U.S.C. § 636(b)(1). The
court will adopt the proposed findings and recommendation of
the magistrate judge.
court must issue or deny a COA when it enters a final order
adverse to the applicant. A COA should issue “only if
the applicant has made a substantial showing of the denial of
a constitutional right.” 28 U.S.C. § 2253(c)(2).
An applicant can satisfy this standard by demonstrating that
the issues raised are debatable among jurists, a court could
resolve the issues differently, or the questions deserve
further proceedings. Slack v. McDaniel, 529 U.S.
473, 483-84 (2000). After considering the issues raised and
their disposition, the court will deny a COA.
THEREFORE, IT IS ORDERED, ADJUDGED and DECREED that:
Defendant's Responses [Objections] to Proposed Findings
and Recommended Disposition filed September 15, 2017 (Doc.
15, 1:16-cv-01204-PJK-KRS; Doc. 287, 1:12-cr-00966-PJK-1) to
the Magistrate Judge's Report and Recommendation filed
September 1, 2017 (Doc. 14, 1:16-cv-01204-PJK-KRS; Doc. 286,
1:12-cr-00966-PJK-1). are overruled.
Proposed Findings and Recommended Disposition of the
Magistrate Judge (Doc. 14, 1:16-cv-01204-PJK-KRS; Doc. 286,
1:12-cr-00966-PJK-1) are adopted.
Vann's Motion to Vacate, Set Aside, or Correct Sentence
under 28 U.S.C. § 2255, (Doc. 2, 1:16-cv-01204-PJK-KRS;
Doc. 277, 1:12-cr-00966-PJK-1) is denied.
certificate of appealability is denied.
separate judgment shall be entered in the civil case