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UNITED STATES OF AMERICA,

Plaintiff,





v.

DARRELL GIBSON,

Defendant.





UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION at LEXINGTON













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5:89-cr-05-JMH-4

13-cv-7294-JMH-REW

MEMORANDUM OPINION & ORDER









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This matter is before the Court on the Report and

Recommendation entered by Magistrate Judge Robert E. Wier [DE

359]. Said action was referred to the magistrate for the purpose of

reviewing the merit of Defendant Gibson=s Motion to Vacate, Set

Aside, or Correct His Sentence pursuant to 28 U.S.C. ' 2255 [DE

355]. Defendant has filed Objections [DE 360] to the Report and

Recommendation. The Court has carefully considered this matter and

concludes that it will accept and adopt the Magistrate Judge=s well-

reasoned and articulated recommendation. In so doing, the Court

has closely considered Gibson=s objections.

Defendant acknowledges that there is pending a direct appeal

of this Court’s June 12, 2013, judgment revoking his supervised

release. He also concedes that “in the absence of extraordinary

circumstances, a district court is precluded from considering a §

2255 application for relief during the pendency of the applicant’s



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direct appeal.” Capaldi v. Pontesso, 135 F.3d 1122, 1124 (6th Cir.

1998). He objects to the Report and Recommendation, however,

because he believes that he has presented the Court with the type

of extraordinary circumstances which would merit consideration of

his § 2255 petition at this time. Specifically, he argues (1) that

his “liberty”, i.e., “freedom from incarceration,” is at stake and

that any issue which concerns liberty is extraordinary and (2) that

he cannot raise the issues he wishes to raise on appeal because he

is represented on appeal by the same attorney whose conduct at the

trial court level he complains of in his Motion to Vacate, Set

Aside, or Correct His Sentence.

These arguments do not persuade the Court. While the Court

recognizes the value and centrality of liberty to the American

experience and our system of justice, the fact that liberty at

stake does not — without more — transform this situation into an

“extraordinary” circumstance requiring this Court to countenance

Gibson’s § 2255 petition at this time. Further, the Court is not

moved by the fact that he feels that he cannot adequately present

his argument concerning ineffective assistance of counsel at the

Court of Appeals while he is represented by the same counsel who

represented him before this Court. Gibson has not asked his

attorney to withdraw or requested appointment of new counsel before

the Court of Appeals, despite what he describes as his grave

concerns about his current attorney’s ability to represent him



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effectively. Further, while he may present his ineffective-

assistance of counsel argument on direct appeal, it can be

adjudicated there only if the record is sufficiently developed to

permit the appellate court to review his claim. See United States

v. Jones, 489 F.3d 243, 255 (6th Cir. 2007) (citing United States

v. Wagner, 382 F.3d 598, 615 (6th Cir. 2004)). If it is not yet

sufficiently developed, he shall simply have to wait until his

direct appeal process is concluded. Indeed, “in most cases a

motion brought under § 2255 is preferable to direct appeal for

deciding claims of ineffective assistance.” Massaro v. United

States, 538 U.S. 500, 504 (2003).

Assuming that there are extraordinary circumstances which

would warrant the Court’s consideration of Gibson’s Motion to

Vacate, Set Aside, or Correct His Sentence pursuant to 28 U.S.C. '

2255 at this time, then Gibson’s ineffective assistance of counsel

claim would fail. Certainly, there is a full record of what

transpired from which this Court can evaluate an ineffective

assistance of counsel record. Review of the transcript from the

revocation hearing on June 10, 2013, reveals that Defendant Gibson,

by and through counsel, stipulated to the fact of his state law

violation and conviction which resulted in the violation of his

terms of supervised release and acknowledged the possible Guideline

range of eight to fourteen months’ incarceration for that

violation. His counsel clearly asked the Court to impose a



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sentence which would run concurrent with the sentence being served

in state custody for the state law violation. The Court recognized

its authority to do so but declined, reasoning that it should not

in this instance depreciate the seriousness of the violation of the

terms of supervised release by imposing a concurrent sentence.

Instead, the Court elected to exercise its authority to impose a

sentence – within the range recognized as appropriate by Defendant

and his counsel – to run concurrent with Gibson’s state sentence,

in part, and consecutive to his state sentence, in part.

Thus, the Court cannot see how counsel's alleged acts and

omissions, whether taken separately or as a whole, would meet the

test for ineffective assistance of counsel set forth in Strickland

v. Washington, 466 U.S. 668 (1984), because Gibson cannot show

prejudice as a result of his counsel’s acts or omissions. His

counsel clearly stated in Gibson’s presence that they understood

the Guidelines range and asked that his sentence for the violation

of his terms of supervised release run concurrent with his state

custodial sentence for the state law violation. There was no

prejudice unless this Court erred when it concluded that it had the

authority to enter a sentence to run concurrent with, in part, and

consecutive to, in part, the state sentence which Gibson was

already serving for the state law violation. Thus, the record as

it exists should be sufficiently complete to permit the United

States Court of Appeals for the Sixth Circuit to determine on



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direct appeal whether Defendant Gibson was denied assistance of

counsel should he present that argument on appeal.

Finally, the Court considers whether a certificate of

appealability should issue in this matter. AA certificate of

appealability may issue . . . only if the applicant has made a

substantial showing of the denial of a constitutional right.@ 28

U.S.C. ' 2253(c)(2). In order for a certificate to issue,

Defendant must be able to show that reasonable jurists could find

in his favor, and the Aquestion is the debatability of the

underlying federal constitutional claim, not the resolution of that

debate.@ Miller-El v. Cockrell, 537 U.S. 322, 342 (2003). Having

carefully considered the matter, this Court concludes that no

certificate should issue as Gibson cannot make a substantial

showing of the denial of a constitutional right.

Accordingly, IT IS ORDERED:

(1) that the Magistrate Judge=s Report and Recommendation [DE

359] is ACCEPTED and ADOPTED IN PART and REJECTED IN PART; and

(2) that Gibson=s Motion to Vacate, Set Aside, or Correct his

sentence pursuant to 28 U.S.C. ' 2255 [DE 355] is DENIED without

prejudice to its refiling at the appropriate time; and

(3) that no certificate of appealability will issue.









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This the 20th day of September, 2013.









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