Motion to Vacate — No. 1:20-cr-00296 (Dkt. 1132, N.D. Ga.)

Summary

A Final Report and Recommendation, Document 1132 filed September 30, 2024 in the Northern District of Georgia (Criminal Action No. 1:20-cr-296-6-JPB-CMS; Civil Action No. 1:24-cv-99-JPB-CMS), Ricky Dixon v. United States, by Magistrate Judge Catherine M. Salinas, on a pro se motion to vacate under 28 U.S.C. § 2255. Dixon claims trial counsel was ineffective for not challenging the second superseding indictment as to Counts 29 and 62 or objecting to its alleged constructive amendment, and that he is actually innocent of aggravated identity theft in Count 29. He pleaded guilty on August 1, 2022 in a Paycheck Protection Program loan scheme and was sentenced to 100 months on January 25, 2023. The magistrate judge recommends denying the motion and a certificate of appealability.

Summary drafted by a model from the document's text below and checked by script against that text before publication. It is a navigation aid, not a reading of what the document proves. Where AI is used

Full text

  Case 1:20-cr-00296-JPB-CMS      Document 1132     Filed 09/30/24   Page 1 of 17




                IN THE UNITED STATES DISTRICT COURT
               FOR THE NORTHERN DISTRICT OF GEORGIA
                         ATLANTA DIVISION

RICKY DIXON,                                 MOTION TO VACATE
    Movant,                                  28 U.S.C. § 2255

v.                                           CRIMINAL ACTION NO.
                                             1:20-cr-296-6-JPB-CMS
UNITED STATES OF AMERICA,
    Respondent.                              CIVIL ACTION NO.
                                             1:24-cv-99-JPB-CMS

                FINAL REPORT AND RECOMMENDATION

      Movant Ricky Dixon, confined at FCI Morgantown in Morgantown, West

Virginia, submitted a pro se Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside,

or Correct Sentence by a Person in Federal Custody (“Motion to Vacate”).

[Doc. 800]. In the Motion to Vacate, Dixon argues that (1) trial counsel was

ineffective for failing to challenge the allegedly defective second superseding

indictment (“SSI”) as to Counts 29 and 62 (“Claim 1”); (2) trial counsel was

ineffective for failing to object to the alleged constructive amendment of Counts 29

and 62 during Dixon’s guilty plea hearing (“Claim 2”); and (3) that, in light of an

intervening change in law, he is actually innocent of aggravated identity theft as

charged in Count 29 of the SSI (“Claim 3”). [Doc. 800-1 at 1–15]. The Government

filed a response, and Dixon filed a reply. [Docs. 986, 1070].
     Case 1:20-cr-00296-JPB-CMS     Document 1132   Filed 09/30/24   Page 2 of 17




        For the reasons stated below, I recommend that the Motion to Vacate

[Doc. 800] be DENIED.

I.      BACKGROUND

        Dixon was charged, along with fifteen others, in an SSI that the Grand Jury

returned on August 10, 2021. [Doc. 290]. Dixon was charged with 22 counts. [Id.].

The charges stem from Dixon’s conspiracy with others to submit false materials such

as such as a false loan application, false IRS Form 941s, and false payroll

spreadsheets to a financial institution to obtain Paycheck Protection Program loan

funding. [Id. at 51–53, 72–73]. In one such submission, Dixon listed stolen

personally identifiable information, including a social security number and date of

birth, belonging to “S.R.” [Id.].

        On August 1, 2022, Dixon, pursuant to a plea agreement, pleaded guilty to

one count of aggravated identity theft (Count 29) and one count of conspiracy to

commit money laundering (Count 62). [Doc. 519-1]. On January 25, 2023, the

Court sentenced Dixon to 100 months of imprisonment. [Doc. 624]. Dixon did not

file a direct appeal. On January 4, 2024, Dixon filed the instant Motion to Vacate.

[Doc. 800].




                                         2
  Case 1:20-cr-00296-JPB-CMS        Document 1132      Filed 09/30/24   Page 3 of 17




II.   LEGAL STANDARD

      A motion to vacate, set aside, or correct sentence may be made “upon the

ground that the sentence was imposed in violation of the Constitution or laws of the

United States, or that the court was without jurisdiction to impose such sentence, or

that the sentence was in excess of the maximum authorized by law, or is otherwise

subject to collateral attack . . . .” 28 U.S.C. § 2255(a). “[C]ollateral review is not a

substitute for a direct appeal . . . .” Lynn v. United States, 365 F.3d 1225, 1232 (11th

Cir. 2004) (per curiam). Section 2255 relief “is reserved for transgressions of

constitutional rights and for that narrow compass of other injury that could not have

been raised in direct appeal and would, if condoned, result in a complete miscarriage

of justice.” Id. (quoting Richards v. United States, 837 F.2d 965, 966 (11th Cir.

1988) (per curiam)) (internal quotation marks omitted). A § 2255 movant “has the

burden of sustaining his contentions by a preponderance of the evidence.” Tarver v.

United States, 344 F. App’x 581, 582 (11th Cir. 2009) (per curiam) (quoting

Wright v. United States, 624 F.2d 557, 558 (5th Cir. 1980)).

      In his Motion to Vacate, Dixon asserts three claims for relief. In Claim 1,

Dixon argues that his trial counsel was ineffective for failing to challenge the

allegedly defective SSI as to Counts 29 and 62. [Doc. 800-1 at 1–6]. According to

Dixon, Count 29 of the SSI, which charges Dixon with aggravated identity theft,

                                           3
  Case 1:20-cr-00296-JPB-CMS       Document 1132      Filed 09/30/24   Page 4 of 17




fails to charge an underlying felony offense, because conspiracy to commit wire

fraud does not qualify as a felony offense under 18 U.S.C. § 1028A(c). [Id. at 3].

Dixon also claims that Count 29 fails to charge that he knew that the means of

identification at issue belonged to another person. [Id.]. Dixon further argues that

Count 62 of the SSI, which charges Dixon with conspiracy to commit money

laundering, fails to charge the essential element of “voluntarily.” [Id. at 3–4].

      In Claim 2, Dixon alleges that his trial counsel was ineffective for failing to

object to the alleged constructive amendment of Counts 29 and 62 during Dixon’s

guilty plea hearing. [Doc. 800-1 at 7–11]. According to Dixon, counsel for the

Government constructively amended the SSI during the plea hearing by stating

elements of the offenses that differed from the elements of those offenses as listed

in the SSI. [Id. at 9–10].

      Finally, in Claim 3, Dixon argues that he is actually innocent of aggravated

identity theft as charged in Count 29 of the SSI, based on an intervening change in

the law. [Doc. 800-1 at 12–15]. According to Dixon, the Supreme Court’s decision

in Dubin v. United States, 599 U.S. 110 (2023), narrowed the scope of § 1028A,

making him actually innocent of the aggravated identity theft offense charged in

Count 29. [Id.].



                                          4
  Case 1:20-cr-00296-JPB-CMS        Document 1132      Filed 09/30/24    Page 5 of 17




III.   DISCUSSION

       A.     Ineffective Assistance of Counsel

       Dixon’s first two claims are for ineffective assistance of counsel. [Doc. 800-1

at 1–11.] I will first set forth the legal standard for ineffective assistance of counsel

claims and will then discuss the claims in turn.

       To demonstrate ineffective assistance of counsel, a convicted defendant must

show that (1) “counsel’s performance was deficient,” and (2) “the deficient

performance prejudiced the defense.” Strickland v. Wash., 466 U.S. 668, 687

(1984).     As to the first prong of Strickland, “a court must indulge a strong

presumption that counsel’s conduct falls within the wide range of reasonable

professional assistance; that is, the defendant must overcome the presumption that,

under the circumstances, the challenged action might be considered sound trial

strategy.” Id. at 689 (internal quotation marks omitted). That presumption is “even

stronger” if a court is “examining the performance of an experienced trial counsel.”

Chandler v. United States, 218 F.3d 1305, 1316 (11th Cir. 2000).

       As to the second prong, “[t]he defendant must show that there is a reasonable

probability that, but for counsel’s unprofessional errors, the result of the proceeding

would have been different. A reasonable probability is a probability sufficient to

undermine confidence in the outcome.” Strickland, 466 U.S. at 694. A court may

                                           5
  Case 1:20-cr-00296-JPB-CMS       Document 1132      Filed 09/30/24   Page 6 of 17




consider either prong first and need not address the other “if the defendant makes an

insufficient showing on one.” Id. at 697.

      The defendant, not the Government, “continually bears the burden of

persuasion on the constitutional issue of competence and further, (adding the

prejudice element) on the issue of ineffective assistance of counsel.” Chandler,

218 F.3d at 1315 n.15. “Never does the government acquire the burden to show

competence, even when some evidence to the contrary might be offered by the

[defendant].” Id.

             1.     Claim 1

      In Claim 1, Dixon alleges that his trial counsel “provided him with ineffective

assistance of counsel by failing to conduct legal research, failing to properly examine

[the] Second Superseding Indictment as to Counts 29, and 62, and failing to file a

pre-trial Motion to Dismiss . . . as to Counts 29 and 62[.]” [Doc. 800-1 at 1]. Dixon

claims that Count 29 of the SSI contained two fatal defects: (1) conspiracy to commit

wire fraud does not qualify as an underlying felony offense under § 1028A(c); and

(2) the SSI fails to charge that Dixon knew that the means of identification at issue

belonged to another person. [Id. at 3]. Dixon also argues that Count 62 of the SSI

was defective because it failed to charge the essential element of “voluntarily.” [Id.

at 3–4].

                                            6
  Case 1:20-cr-00296-JPB-CMS          Document 1132   Filed 09/30/24   Page 7 of 17




                   a.     Underlying Felony Offense

      According to Dixon, Count 29 of the SSI is fatally flawed because it fails to

charge an underlying felony offense enumerated in § 1028A(c). [Id. at 3]. Dixon,

however, withdrew this argument in his reply. [Doc. 1070 at 3]. This portion of

Claim 1 is therefore moot.

                   b.     Knowledge That Means of Identification Belonged to
                          Another Person
      Dixon next argues that Count 29 of the SSI is fatally defective because it fails

to charge that Dixon knew the means of identification at issue belonged to another

person as required by Eleventh Circuit precedent. [Doc. 800-1 at 3]. In support of

this argument, Dixon cites to United States v. Becerra-Rodriguez, No. 21-10930,

2021 WL 5145248 (11th Cir. Nov. 5, 2021). [Id.] In Becerra-Rodriguez, the

Eleventh Circuit explained that “[t]o obtain a conviction for violation of 18 U.S.C.

§ 1028A(a)(1), the government must prove, among other things, that ‘the defendant

knew that the means of identification at issue belonged to another person.’”

Becerra-Rodriguez, 2021 WL 5145248, at *2 (quoting Flores-Figueroa v. United

States, 556 U.S. 646, 657 (2009)).

      Becerra-Rodriguez      relied     on   the   Supreme   Court’s    decision      in

Flores-Figueroa.        Becerra-Rodriguez, 2021 WL 5145248, at *2.                    In

Flores-Figueroa, the Supreme Court held that the word “knowingly” in 18 U.S.C.
                                             7
  Case 1:20-cr-00296-JPB-CMS       Document 1132      Filed 09/30/24   Page 8 of 17




§ 1028A(a)(1) “requires the Government to show that the defendant knew that the

means of identification at issue belonged to another person.” Flores-Figueroa, 556

U.S. at 657. Flores-Figueroa, however, addressed the Government’s burden of

proof at trial to establish that a defendant charged with violating Section 1028A(a)(1)

acted “knowingly.” Id. It did not address or affect the standard that the Government

must satisfy to sufficiently allege a violation of Section 1028A(a)(1) in an

indictment. See United States v. Prelogar, 996 F.3d 526, 532 (8th Cir. 2021) (noting

that the court had “upheld as sufficient an indictment that charged aggravated

identity theft because, although the indictment did not plead knowledge as explained

in Flores-Figueroa, it tracked the language of 18 U.S.C. § 1028A(a)(1)”).

      “The standard for whether an indictment sufficiently alleges a crime is not

demanding.      An indictment tracking the statutory language and stating

approximately the time and place of an alleged crime is sufficient.” United States v.

Moore, 954 F.3d 1322, 1332 (11th Cir. 2020) (citing United States v. Brown,

752 F.3d 1344, 1353 (11th Cir. 2014)). Count 29 of the SSI satisfies this standard.

      The language of 18 U.S.C. § 1028A(a)(1) provides: “Whoever, during and in

relation to any felony violation enumerated in subsection (c), knowingly transfers,

possesses, or uses, without lawful authority, a means of identification of another

person shall, in addition to the punishment provided for such felony, be sentenced

                                          8
  Case 1:20-cr-00296-JPB-CMS        Document 1132      Filed 09/30/24    Page 9 of 17




to a term of imprisonment of 2 years.” 18 U.S.C. § 1028A(a)(1). Count 29 of the

SSI alleges, in relevant part, that Dixon “did knowingly possess and use, without

lawful authority, a means of identification of another person, that is, a social security

number and date of birth belonging to ‘S.R.,’ during and in relation to a felony

offense, that is, Conspiracy to Commit Wire Fraud.” [Doc. 290 at 53]. Count 29 of

the SSI, therefore, accurately tracked the statutory language of 18 U.S.C.

§ 1028A(a)(1). Count 29 thus sufficiently alleged that Dixon violated 18 U.S.C.

§ 1028A(a)(1). [Doc. 290 at 53].

      Because Count 29 of the SSI was not fatally defective for failing to charge

that Dixon knew the means of identification at issue belonged to another person,

counsel did not perform deficiently by failing to file a motion to dismiss on this

basis. See Denson v. United States, 804 F.3d 1339, 1342 (11th Cir. 2015) (“Failing

to make a meritless objection does not constitute deficient performance.”); Freeman

v. Atty. Gen, 536 F.3d 1225, 1233 (11th Cir. 2008) (“A lawyer cannot be deficient

for failing to raise a meritless claim.”). Dixon, therefore, cannot establish an

ineffective assistance of counsel claim based on this argument.

                    c.     Voluntarily

      Dixon next argues that Count 62 of the SSI is defective because it failed to

charge the “essential element of ‘voluntarily.’” [Doc. 800-1 at 3]. Like Count 29,

                                           9
 Case 1:20-cr-00296-JPB-CMS        Document 1132      Filed 09/30/24    Page 10 of 17




Count 62 tracked the statutory language of the alleged offense, which uses the word

“knowingly,” not “voluntarily.” See [Doc. 290 at 72]; 18 U.S.C. § 1956(h). Further,

the Eleventh Circuit “ha[s] long held that the term ‘knowingly’ means that the act

was performed voluntarily and intentionally, and not because of a mistake or

accident.” United States v. Woodruff, 296 F.3d 1041, 1047 (11th Cir. 2002). Count

62 thus sufficiently alleged the charged offense even though it did not include the

word “voluntarily.” Moore, 954 F.3d at 1332.

      For the above reasons, Count 69 of the SSI was not defective. As a result,

counsel did not perform deficiently by failing to file a motion to dismiss on this

basis. Denson, 804 F.3d at 1342; Freeman, 536 F.3d at 1233. Dixon, therefore,

cannot establish an ineffective assistance of counsel claim based on this argument.

             2.     Claim 2

      In Claim 2, Dixon argues that his trial counsel provided him with ineffective

assistance by “failing to object to him pleading guilty to Counts 29 and 62, in which

were constructive[ly] amended through Guilty Plea appraisal of the essential

elements[.]” [Doc. 800-1 at 7–11]. According to Dixon, when counsel for the

Government stated the elements of the offenses during Dixon’s plea hearing, those

elements differed from the allegations contained in the SSI. [Id.]. Although Dixon

offers citations to the SSI and to the plea hearing transcript, he does not specify what

                                          10
 Case 1:20-cr-00296-JPB-CMS       Document 1132      Filed 09/30/24   Page 11 of 17




the alleged constructive amendments were other than to say that “the Government

appraisal of the essential elements as it relates to Count 29, and 62, is actually

different than what is charged in the Second Superseding Indictment.” [Id. at 9]. In

his reply, Dixon argues for the first time that counsel for the Government

constructively amended the SSI by stating during the plea hearing that Dixon knew

the identifying information at issue belonged to a real person, even though the SSI

did not contain that allegation. [Doc. 1070 at 9–10].

      “A constructive amendment occurs when the essential elements of the offense

contained in the indictment are altered to broaden the possible bases for conviction

beyond what is contained in the indictment.” United States v. Philpot, 773 F. App’x

583, 589 (11th Cir. 2019) (internal citation omitted). Setting aside the fact that

Dixon raised his only specific argument for the first time in his reply, as explained

above, the SSI tracks the statutory language and charges that Dixon “did knowingly

possess and use . . . a social security number and date of birth belonging to ‘S.R.,’”

a real person. [Doc. 290 at 53]. Dixon does not point to anything in the elements as

stated during his plea hearing that broadened the possible bases for conviction.

Dixon, therefore, fails to show that the statements by counsel for the Government

during the plea hearing constructively amended the SSI.



                                         11
 Case 1:20-cr-00296-JPB-CMS        Document 1132      Filed 09/30/24    Page 12 of 17




      As discussed above, Dixon has not shown that the SSI was constructively

amended. Dixon’s counsel, therefore, did not perform deficiently by failing to object

to the alleged constructive amendment during the plea hearing. Denson, 804 F.3d at

1342; Freeman, 536 F.3d at 1233.          Dixon consequently cannot establish an

ineffective assistance of counsel claim based on this argument.

      B.     Claim 3

      In Claim 3, Dixon argues that he is actually innocent of aggravated identity

theft as charged in Count 29 of the SSI, based on an intervening change in the law.

[Doc. 800-1 at 12–15]. To support this argument, Dixon cites Dubin v. United

States, 599 U.S. 110 (2023). In Dubin, the Supreme Court clarified the scope of

§ 1028A and explained that “[a] defendant ‘uses’ another person’s means of

identification ‘in relation to’ a predicate offense when this use is at the crux of what

makes the conduct criminal.” 599 U.S. at 131.

      The Government argues that the appeal waiver in Dixon’s guilty plea

agreement bars Claim 3. [Doc. 986 at 7]. Alternatively, the Government argues that

Claim 3 is procedurally defaulted because Dixon did not raise it on direct appeal,

and that Dixon cannot show cause and prejudice (or actual innocence) to excuse the

default. [Id.].



                                          12
 Case 1:20-cr-00296-JPB-CMS       Document 1132      Filed 09/30/24   Page 13 of 17




      Dixon argues that this challenge was not procedurally defaulted, but he does

not address the waiver argument. See [Doc. 1070 at 12–13]. Dixon’s guilty plea

agreement contained a provision that stated:

      LIMITED WAIVER OF APPEAL: To the maximum extent permitted
      by federal law, the Defendant voluntarily and expressly waives the right
      to appeal his conviction and sentence and the right to collaterally attack
      his conviction and sentence in any post-conviction proceeding
      (including, but not limited to) motions filed pursuant to 28 U.S.C.
      § 2255) on any ground, except that the Defendant may file a direct
      appeal of an upward departure or upward variance above the sentencing
      guideline range as calculated by the District Court. Claims that the
      Defendant’s counsel rendered constitutionally ineffective assistance are
      excepted from this waiver. The Defendant understands that this Plea
      Agreement does not limit the Government’s right to appeal, but if the
      Government initiates a direct appeal of the sentence imposed, the
      Defendant may file a cross-appeal of that same sentence.

[Doc. 519-1 at 15].

      The Court discussed the waiver provision with Dixon during Dixon’s plea

hearing. [Doc. 642 at 24–25]. The Court explained the rights that Dixon would

ordinarily have to appeal or to file a motion to vacate under 28 U.S.C. § 2255. [Id.

at 24–25]. The Court told Dixon that in his plea agreement, Dixon had “for the most

part given up these rights.” [Id. at 25]. The Court advised Dixon that under the

waiver provision, Dixon would be waiving his right to appeal or collaterally attack

his conviction or sentence except in three specific circumstances: if there was an

upward departure or variance above the Sentencing Guidelines range as calculated

                                         13
 Case 1:20-cr-00296-JPB-CMS       Document 1132       Filed 09/30/24    Page 14 of 17




by the Court, if the Government filed an appeal for any reason, or if Dixon asserted

claims of constitutionally ineffective assistance of counsel. [Id.]. The Court advised

Dixon, “But aside from these three very narrow circumstances, you will have no

right of appeal and will be essentially bound by my decision.” [Id.].

      The Court then asked Dixon whether he understood. [Doc. 642 at 25]. Dixon

answered affirmatively. [Id.]. The Court also asked Dixon’s counsel whether he

had “reviewed those rights with your client such that you’re comfortable that he

understands both his rights and waiver of those rights.” [Id.]. Dixon’s counsel

responded, “Yes, your Honor.” [Id.].

      “An appeal waiver includes the waiver of the right to appeal difficult or

debatable legal issues or even blatant error.” United States v. Grinard-Henry,

399 F.3d 1294, 1296 (11th Cir. 2005). An appeal waiver “‘will be enforced if the

government demonstrates either: (1) the district court specifically questioned the

defendant about the waiver during the plea colloquy, or (2) the record clearly shows

that the defendant otherwise understood the full significance of the waiver.” Id.

(quoting United States v. Benitez-Zapata, 131 F.3d 1444, 1446 (11th Cir. 1997)).

Here, the record demonstrates that the Court “specifically questioned [Dixon] about

the waiver during the plea colloquy.”         Id.   The appeal waiver, therefore, is

enforceable. Id.

                                         14
 Case 1:20-cr-00296-JPB-CMS      Document 1132     Filed 09/30/24   Page 15 of 17




      The record also demonstrates that Dixon understood the full significance of

the appeal waiver. When the Court asked Dixon whether Dixon understood that

aside from three very narrow circumstances, he would have no right of appeal and

would essentially be bound by the Court’s decision, Dixon responded, “Yes, sir.”

[Doc. 642 at 25]. “Solemn declarations in open court carry a strong presumption of

verity.” Blackledge v. Allison, 431 U.S. 63, 74 (1977). Because Dixon “made

statements under oath at a plea colloquy, he bears a heavy burden to show his

statements were false.” Winthrop-Redin v. United States, 767 F.3d 1210, 1217

(11th Cir. 2014) (internal quotation omitted).    Dixon has not shown that his

statements were false, and the record consequently demonstrates that Dixon

understood the appeal waiver provision.

      For the above reasons, the appeal waiver is valid and enforceable. The appeal

waiver, therefore, bars Claim 3. Dixon consequently is not entitled to relief on

Claim 3.

      C.    Evidentiary Hearing Request

      Dixon requests an evidentiary hearing on his Motion to Vacate. [Doc. 800-1

at 16]. A court, however, is not required to hold an evidentiary hearing every time

a Section 2255 claim is raised. Futch v. Dugger, 874 F.2d 1483, 1485 (11th Cir.

1989). Instead, a federal habeas corpus petitioner is entitled to an evidentiary

                                          15
 Case 1:20-cr-00296-JPB-CMS        Document 1132      Filed 09/30/24   Page 16 of 17




hearing only where the petitioner alleges facts that, if proven, would entitle the

petitioner to relief. Id. A court also is not required to hold an evidentiary hearing

when “the record refutes the applicant’s factual allegations or otherwise precludes

habeas relief.” Schriro v. Landrigan, 550 U.S. 465, 474 (2007). Here, the record

conclusively shows that Dixon is entitled to no relief; a hearing, therefore, is not

required. See 28 U.S.C. § 2255(b).

IV.   CERTIFICATE OF APPEALABILITY

      Under Rule 11(a) of the Rules Governing Section 2255 Proceedings, “[t]he

district court must issue or deny a certificate of appealability when it enters a final

order adverse to the applicant. . . . If the court issues a certificate, the court must

state the specific issue or issues that satisfy the showing required by

28 U.S.C.§ 2253(c)(2).” 28 U.S.C. foll. § 2255, Rule 11(a). Section 2253(c)(2)

states that a certificate of appealability may issue “only if the applicant has made a

substantial showing of the denial of a constitutional right.” A substantial showing

of the denial of a constitutional right “includes showing that reasonable jurists could

debate whether (or, for that matter, agree that) the [motion to vacate] should have

been resolved in a different manner or that the issues presented were adequate to

deserve encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473, 484

(2000) (internal quotation marks omitted).

                                          16
 Case 1:20-cr-00296-JPB-CMS       Document 1132      Filed 09/30/24   Page 17 of 17




      When the district court denies a [motion to vacate] on procedural
      grounds without reaching the prisoner’s underlying constitutional claim
      . . . a certificate of appealability should issue only when the prisoner
      shows both that jurists of reason would find it debatable whether the
      [motion] states a valid claim of the denial of a constitutional right and
      that jurists of reason would find it debatable whether the district court
      was correct in its procedural ruling.

Jimenez v. Quarterman, 555 U.S. 113, 118 n.3 (2009) (citing Slack, 529 U.S. at 484)

(internal quotation marks omitted).

      I RECOMMEND that a certificate of appealability be denied because the

resolution of the issues presented is not debatable. If the district judge adopts this

recommendation and denies a certificate of appealability, Dixon is advised that he

“may not appeal the denial but may seek a certificate from the court of appeals under

Federal Rule of Appellate Procedure 22.” 28 U.S.C. foll. § 2255, Rule 11(a).

V.    CONCLUSION

      For the reasons stated above, I RECOMMEND that the Motion to Vacate

[Doc. 800] be DENIED, that a certificate of appealability be DENIED, and that

civil action number 1:24-cv-99-JPB-CMS be CLOSED.

      SO RECOMMENDED, this 30th day of September, 2024.




                                         Catherine M. Salinas
                                         United States Magistrate Judge
                                         17


File and source

File

1132.pdf

Size

247,998 bytes

SHA-256

cf72a64416556e9926e568d4060bcf450ea7ec1664487526a4392a886c8323f8

Our copy

1132.pdf

Original

archive.org