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Beverly v. United States

February 7, 2007

NOAH BEVERLY, PETITIONER,
v.
UNITED STATES OF AMERICA, RESPONDENT.



The opinion of the court was delivered by: Judge Graham

Magistrate Judge King

OPINION AND ORDER

On September 20, 2006, the Magistrate Judge issued a Report and Recommendation recommending that all of the claims raised in petitioner's motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. §2255 be dismissed, with the exception of petitioner's claim that his sentence violated Blakely v. Washington, 542 U.S. 296 (2004). On November 28, 2006, petitioner's objections to the Magistrate Judge's Report and Recommendation were overruled, and all of petitioner's claims, with the exception of his Blakely claim, were dismissed. Doc. No. 228. On December 18, 2006, petitioner's Blakely claim was also dismissed.

On January 31, 2007, petitioner filed a notice of appeal and a request for a certificate of appealability. Doc. Nos. 232, 233. For the reasons that follow, petitioner's request for a certificate of appealability, Doc. No. 233, is DENIED.

In his §2255 petition, petitioner asserts:

1. I was denied the effective assistance of counsel.

My counsel failed to have my trial severed from my co-defendants.

2. I was denied effective assistance of counsel at trial because the evidence proved multiple conspiracies.

I was charged with one conspiracy, however, the evidence proved there were multiple conspiracies. My counsel should have raised this at trial and requested a jury instruction regarding multiple conspiracies.

3. I was denied the effective assistance of counsel during my appellate proceedings.

My counsel failed to raise issues of severance, multiple conspiracies, pre-indictment delay and sufficiency of the evidence.

4. My counsel was ineffective during the plea process.

My counsel did not pursue a plea agreement for me. I would have pleaded guilty had an agreement been offered.

5. Counsel was ineffective for failing to challenge five level increase in petitioner's recommended sentence for use of a ...


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