U.S. v. Bannister

Full title: United States of America, v. Tanesha Bannister, Defendant

Court: United States District Court, D. South Carolina, Columbia Division

Date published: Mar 23, 2011

CRIMINAL NO. 3:02-548-CMC (D.S.C. Mar. 23, 2011)

Opinion

CRIMINAL NO. 3:02-548-CMC.

March 23, 2011

OPINION and ORDER

CAMERON CURRIE, District Judge

Defendant, proceeding pro se, seeks relief in this court pursuant to 28 U.S.C. § 2255. Defendant raises three claims of alleged ineffective assistance of counsel. The Government filed a motion for summary judgment. Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court advised Defendant of the summary judgment procedure and the consequences if she failed to respond. Defendant responded to the Government's motion and this matter is ripe for resolution.

The court has reviewed the complete record in this case. For the reasons stated in the Government's response, which this court finds to be correct and adopts as its findings, the court grants the Government's motion for summary judgment as to Defendant's claims for relief. There are disputes between the averments contained in Defendant's affidavit and that of her counsel, W. Michael Duncan. However, these differences are not material as they did not affect her conviction or sentence. Defendant contends she was not told that she was not required to cooperate in order to plead guilty and receive points off for acceptance of responsibility. However, even if she had done so, her Guideline range would have been, at best, 292 to 365 months' imprisonment. Her sentence was 280 months' imprisonment, below that Guideline range.

IT IS THEREFORE ORDERED that the Government's Motion for Summary Judgment is granted. The motion under 28 U.S.C. § 2255 is denied with prejudice.

CERTIFICATE OF APPEALABILITY

The governing law provides that:

(c)(2) A certificate of appealability may issue . . . only if the applicant has made a substantial showing of the denial of a constitutional right.

(c)(3) The certificate of appealability . . . shall indicate which specific issue or issues satisfy the showing required by paragraph (2).

28 U.S.C. § 2253(c). A prisoner satisfies this standard by demonstrating that reasonable jurists would find this court's assessment of his constitutional claims is debatable or wrong and that any dispositive procedural ruling by the district court is likewise debatable. See Miller-El v. Cockrell, 537 U.S. 322, 336 (2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000); Rose v. Lee, 252 F.3d 676, 683 (4th Cir. 2001). In this case, the legal standard for the issuance of a certificate of appealability has not been met. Therefore, a certificate of appealability is denied. IT IS SO ORDERED.