United States District Court, N.D. Florida, Tallahassee Division
ORDER DENYING THE § 2255 MOTION AND DENYING A
CERTIFICATE OF APPEALABILITY
L. HINKLE UNITED STATES DISTRICT JUDGE
defendant Robert E. Youman is serving a sentence in the
Bureau of Prisons. He has moved for relief under 28 U.S.C.
§ 2255. His principal complaint is that the Bureau has
determined not to give him credit on his sentence based on
successful completion of the residential drug abuse program
or “RDAP.” The motion is before the court on the
magistrate judge's report and recommendation, ECF No. 77.
No objections have been filed. This order accepts the report
and recommendation and denies the § 2255 motion.
convicted Mr. Youman of a drug offense. In calculating the
guideline range under the United States Sentencing
Guidelines, the presentence report assessed a two-level
increase for possessing a firearm in connection with the
offense. Mr. Youman objected. The objection was overruled. An
explicit finding was made on the record of the sentencing
hearing that Mr. Youman possessed a firearm in connection
with the offense.
Youman received a sentence well below the guideline range.
Not surprisingly, he did not appeal. The jury returned its
verdict based on sufficient evidence after a full and fair
trial, there were no procedural rulings that would have
supported an appeal, and the sentence was favorable to Mr.
Youman-as favorable as he could reasonably have advocated.
sentence included a recommendation to the Bureau of Prisons
that Mr. Youman participate in RDAP. This was not unusual. I
routinely recommend RDAP placement for defendants who could
benefit from the program. I do this on my own, often without
a request, and always without regard to whether a defendant
will qualify for a sentence reduction for successfully
completing the program. The point is for the defendant to
benefit from the program-not to get a sentence reduction.
sure, the Bureau may reduce a defendant's time in custody
by up to 12 months upon successful completion of RDAP, but
only if the defendant has been convicted of a
“nonviolent offense.” 18 U.S.C. §
3621(e)(2)(B). The Bureau treats possession of a firearm as
inconsistent with the requirement that the offense be
“nonviolent.” Apparently on this basis, the
Bureau has refused to give Mr. Youman a reduction.
Youman apparently does not challenge the Bureau's policy
and in any event could do so only through a petition for a
writ of habeas corpus under 28 U.S.C. § 2241 in the
district of incarceration, not through the instant §
2255 motion in the district of conviction.
Youman instead seeks relief under § 2255 based on two
contentions: first, that he did not possess a firearm in
connection with the offense of conviction; and second, that
he was promised a sentence reduction, including by the
government, and chose not to appeal his sentence in reliance
on the promise.
contention entitles Mr. Youman to relief.
at the sentencing hearing, Mr. Youman litigated and lost the
question of whether he possessed a firearm in connection with
the offense of conviction. He has proffered nothing new. He
is not entitled to relitigate the question on this §
Mr. Youman's contention that he was promised an RDAP
sentence reduction and otherwise would have appealed is
implausible on its face. The issue of an RDAP sentence
reduction was never mentioned at the sentencing hearing. The
government had secured Mr. Youman's conviction in a jury
trial and had no occasion to promise him anything with regard
to sentencing. Neither the court nor the parties had any
authority to bind the Bureau of Prisons on the issue of
credit- and had the issue been raised, I would have noted
both that this was an issue for the Bureau and that the
firearm enhancement might preclude credit. Moreover, I have
never heard of the government making any such agreement in
this district, even in connection with a guilty plea. And Mr.
Youman has identified no substantial issue he could have
raised on appeal, even now. This is an after-the-fact
hail-Mary with no plausible factual support.
defendant may appeal the denial of a § 2255 motion only
if the district court or court of appeals issues a
certificate of appealability. Under 28 U.S.C. §
2253(c)(2), a certificate of appealability may issue
“only if the applicant has made a substantial showing
of the denial of a constitutional right.” See
Miller-El v. Cockrell, 537 U.S. 322, 335-38 (2003);
Slack v. McDaniel, 529 U.S. 473, 483-84 (2000);
Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983);
see also Williams v. Taylor, 529 U.S. 362, 402-13
(2000) (setting out the standards applicable to a § 2254
petition on the merits). As the Court said in Slack:
To obtain a COA under § 2253(c), a habeas prisoner must
make a substantial showing of the denial of a constitutional
right, a demonstration that, under Barefoot,
includes showing that reasonable jurists could debate whether
(or, for that matter, agree that) the petition should have
been resolved in a different manner or that the issues
presented were “adequate to deserve encouragement to
529 U.S. at 483-84 (quoting Barefoot, 463 U.S. at
893 n.4). Further, in order to obtain a certificate of
appealability when dismissal is based on procedural grounds,
a petitioner must show, “at least, that jurists of
reason would find it debatable whether the petition states a
valid claim of the denial of a constitutional right and that
jurists of reason would find it ...