Opinion
01 Civ. 7195 (JSM), [97 Cr. 1042].
May 7, 2002
OPINION AND ORDER
In an Opinion and Order dated April 8, 2002, the Court rejected all of Petitioner's claims other than the claim that his counsel had told him he could not testify. As to that issue the Court ruled that Petitioner's affidavit was not sufficient to sustain a claim that his counsel's conduct had deprived him of his constitutional right to testify in his own defense. The Court, therefore, gave Petitioner a period of thirty days to file an additional affidavit detailing his conversations with his lawyer concerning his testifying in his own defense.
The Court has now received a submission from Petitioner in which he states that he will not file an affidavit because it is clear from a letter he received from his former attorney, a copy of which was sent to the Court, that their recollections differ. It is apparent from Petitioner's unsworn statements in his submission that counsel had indicated to Petitioner that he was prepared to call Petitioner as a witness but, when counsel was told the substance of the testimony, he said Petitioner could not testify. As the Court suggested in the April 8 Opinion and Order this was "nothing more than the good advice that, despite having a right to testify, it would be foolish for Motzko to testify . . . ."
Since Motzko has not provided evidentiary support for his claim that his counsel denied him the right to testify in his own defense, the petition for relief pursuant to 28 U.S.C. § 2255 is denied and the action is dismissed. In addition, pursuant to 28 U.S.C. § 1915 (a), the Court certifies that an appeal from this case may not be taken in forma pauperis; such an appeal would be frivolous and cannot be taken in good faith. See Coppedge v. United States, 369 U.S. 438, 444-45, 82 S.Ct. 917, 920-21 (1962). The Court determines that the petition presents no question of substance for appellate review and that Petitioner has failed to make a "substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253 (c)(2); see Fed.R.App.P. 22(b). Accordingly, a certificate of appealability will not issue.
Petitioner has also submitted additional arguments concerning claims that the court rejected in its original ruling. considering the current submission as a motion for reconsideration, it is denied, To the extent Motzko seeks a reduction of his sentence, the court has no power to reduce a sentence at this time.