Cofske v. U.S.
| Decision Date | 20 April 2001 |
| Docket Number | No. CIV. A. 99-40162-NMG.,CIV. A. 99-40162-NMG. |
| Parties | Randall J. COFSKE, Petitioner, v. UNITED STATES of America, Respondent. |
| Court | U.S. District Court — District of Massachusetts |
Randall J. Cofske, Minnersville, PA, pro se.
Donald L. Cabell, U.S. Attorney's Office, Boston, MA, for U.S.
Pending before this Court is the pro se application of the Petitioner, Randall Cofske ("Cofske"), for issuance of a Certificate of Appealability ("COA"). Cofske filed his original petition to vacate, set aside or correct his sentence under 28 U.S.C. § 2255 on September 21, 1999, and that petition was denied by this Court on May 18, 2000. On May 25, 2000, Cofske filed a Motion to Reconsider and that motion was denied by this Court on August 18, 2000.
Cofske then attempted to appeal directly to the United States Court of Appeals for the First Circuit. The First Circuit issued an Order, dated December 4, 2000, directing Cofske first to file a request for a Certificate of Appealability in this Court. On February 12, 2001, Cofske filed the pending "Application for Certificate of Appealability" (Docket No. 17).
Under federal statute, federal rules and the local rules for the United States Court of Appeals for the First Circuit, a habeas petitioner may not appeal the final order of a district court dismissing his petition unless he first obtains a Certificate of Appealability. 28 U.S.C. § 2253(c)(1)( that a habeas petitioner may not appeal the district court's final judgment unless a "circuit justice or judge" issues a COA); Fed. R.App. P. 22(b) (); Loc. R. 22.1(a), Rules of Court for the United States Court of Appeals for the First Circuit ( that ordinarily a request for a COA should be made to the district court that dismissed the original petition).
Section 2253(c), as amended by the Anti-Terrorism and Effective Death Penalty Act of 1996, provides that "[a] 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 ruling on a motion for a COA, a district court must state which issues, if any, satisfy the standard set forth in § 2253(c)(2) or the reasons for its denial of the motion. Loc. R. 22.1(a).
Where a district court has rejected constitutional claims on the merits, the petitioner seeking a COA must show that (1) the issues are debatable among jurists of reason, (2) that a court could resolve the issues in a different manner, or (3) that the questions are "adequate to deserve encouragement to proceed further." Smith v. United States, 989 F.Supp. 371, 374 (D.Mass.1997) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n. 4, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983)).
On July 17, 1996, a federal grand jury sitting in Boston returned a five-count indictment charging Cofske and four others with various firearm offenses in violation of Title 18, including one court of Possession of Stolen Firearms in violation of 18 U.S.C. § 922(j), and one count of Transportation of Stolen Firearms in violation of 18 U.S.C. § 922(i).
On March 3, 1997, Cofske pled guilty to Count One of the Indictment charging him with possession of stolen firearms pursuant to a plea agreement entered into on or about February 21, 1997. Cofske's Presentence Report ("PSR") set his base offense level at 20 pursuant to U.S.S.G. § 2K2.1(a)(4)(A) because Cofske had one prior felony conviction of either a crime of violence or a controlled substance offense. The PSR also recommended a three-level enhancement, pursuant to § 2K2.1(b)(1)(c), because the offense involved between eight and twelve firearms, and a four-level enhancement, pursuant to § 2K2.1(b)(5), because Cofske possessed a firearm in connection with another felony offense.
At sentencing, this Court accepted the PSR recommendations, although it specified that the four-level enhancement under § 2K2.1(b)(5) was for Cofske's role in transferring several firearms to co-defendant Reynaldo Barnes with reason to believe that they would thereafter be used in connection with another felony. Following a three-level reduction for acceptance of responsibility, Cofske's total offense level was found to be 24. The additional finding that Cofske fell in Criminal History Category V, rendered an applicable guideline range of 92-115 months, and this Court sentenced Cofske to the low end of that range.
In his original § 2255 petition, Cofske alleged various claims of ineffective assistance of counsel and argued, inter alia, that his trial counsel, Attorney Roger Within, provided ineffective assistance at his sentencing because the attorney failed to raise an objection to and/or did not zealously present a defense in connection with the establishment of Cofske's base offense level of 20. Cofske claimed that he had not been convicted of a prior felony which, in turn, adversely affected the determination of his base offense level.
In the Memorandum and Order denying Cofske's § 2255 petition, this Court analyzed Cofske's ineffective assistance of counsel claims according to the standard provided in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). According to Strickland, in order for an ineffective assistance of counsel claim to succeed, the Petitioner must demonstrate that (1) counsel's performance fell below an objective standard of reasonableness, and (2) Petitioner was consequently prejudiced. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Thus, even if counsel provided ineffective assistance, the court must delve into the merits of the case to determine if Petitioner was prejudiced.
In its Opinion denying Cofske's petition under § 2255, this Court (1) held that Cofske failed to show prejudice and (2) rejected as "misplaced" Cofske's argument that his breaking and entering conviction of May, 1990 was nullified by his appeal. This Court stated that "U.S.S.G. § 4A1.2(l) makes clear that its pertinent provisions apply to prior sentences the execution of which have been stayed pending appeal just as though the execution of such sentences had not been stayed." Citing United States v. Howard, 991 F.2d 195, 200 (5th Cir.1993). This Court concluded that it had properly used the breaking and entering conviction in calculating Cofske's base offense level.
In his petition for a COA, Cofske reiterates his argument concerning the ineffective assistance of trial counsel with...
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Brown v. U.S.
...Aug.29, 2001) (adjudicating a motion for a COA filed after the district court denied habeas relief); Cofske v. United States, 143 F.Supp.2d 85, 87-88 (D.Mass. Apr.20, 2001) (same); Douglas v. Huffman, No. C-2-99-688, 2000 WL 1472717, at *1 (S.D.Ohio Sept.21, 2000) (same); Higgs v. Hobbs, No......
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Cofske v. U.S.
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