Free Response to Motion - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 08-cv-01347-LTB Criminal Action No. 04-cr-00417-LTB UNITED STATES OF AMERICA, Plaintiff-Respondent, v. CLEMMETH D. NEVELS, Defendant-Movant.

ANSWER TO MOTION UNDER 28 U.S.C. § 2255 TO VACATE, SET ASIDE, OR CORRECT SENTENCE

Plaintiff-Respondent United States of America, by and through undersigned counsel, files the following Answer pursuant to Rule 5 of the Rules Governing Section 2255 Proceedings for the United States District Courts. In defendant-movant Clemmeth D. Nevels' Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence (hereinafter, "motion" or "2255 motion"), see Doc. 188, he argues that his attorney provided ineffective assistance during his sentencing proceedings when she did not object to his juvenile proceedings or his prior felony convictions as a whole, and did not object to the use of the juvenile adjudications to enhance his sentence. In addition, he alleges that this Court abused its discretion in using the juvenile adjudications to enhance his

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sentence. As the government shows below, these claims are without merit and Mr. Nevels' 2255 motion should be denied. I. MR. NEVELS' MOTION IS TIMELY

Motions brought under 28 U.S.C. § 2255 are subject to a one-year statute of limitations. Section 2255 specifies in pertinent part: "A 1-year period of limitation shall apply to a motion under this section. The limitation period shall run from the latest of (1) the date on which the judgment of conviction becomes final. . . ." See 28 U.S.C. § 2255. In this case, Mr. Nevels filed a Notice of Appeal of his conviction after trial. See Doc. 135. The Tenth Circuit affirmed the judgment and conviction against Mr. Nevels, see United States v. Nevels, 490 F.3d 800 (10th Cir. 2007), and the mandate was issued on July 9, 2007. See Doc. 186. Mr. Nevels did not petition the Supreme Court for certiorari. He filed his initial 2255 motion with this Court on July 26, 2008, see Doc. 188, within the one-year statute of limitations. See United States v. Burch, 202 F.3d 1274, 1276 (10th Cir. 2000) ("We join the Third Circuit in holding that, for purposes of determining when the limitations period in 28 U.S.C. § 2255(1) begins to run if a defendant does not petition the United States Supreme Court for a writ of certiorari after her direct appeal, her judgment of conviction is final after the time for seeking certiorari review has expired.").

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Pursuant to Rule 5(b) of the Rules Governing Section 2255 Proceedings for the United States District Courts, the United States informs this Court that, to its knowledge, Mr. Nevels has not used any other federal remedies, including any prior post-conviction motions under these rules or any previous rules. II. A. STATEMENT OF FACTS

The Superseding Indictments On April 6, 2005, Mr. Nevels was indicted in a Superseding Indictment. He was

charged in Count One with possession of a firearm by a previously convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e)(1). Id. The indictment specifically identified three previous violent felony convictions: (a) in District Court, for the City and County of Denver, of Menacing ­ Real/Simulated Weapon ­ Conspiracy, case number 2002CR5150; in Juvenile Court, for the City and County of Denver, of Aggravated Robbery, case number 89JD646, with a date of offense of January 25, 1989 (Count I); and in Juvenile Court, for the City and County of Denver, of Aggravated Robbery, case number 89JD646, with a date of offense of September 13, 1989 (Count II).

(b)

(c)

Id. Mr. Nevels was charged in Count Two with possession of a firearm with an altered serial number, in violation of 18 U.S.C. § 922(k). Id. On April 25, 2005, pursuant to the Criminal Justice Act ("CJA"), this Court appointed attorney Dana M. Casper to represent Mr. Nevels. See Doc. 29. 3

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On September 27, 2005, Mr. Nevels was indicted on two counts in a Second Superseding Indictment. See Doc. 49. Again he was charged in Count One with possession of a firearm by a previously convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e)(1). Id. The Second Superseding Indictment specifically identified the same three felony convictions identified in his Superseding Indictment. Id. He was also again charged in Count Two with possession of a firearm with an altered serial number, in violation of 18 U.S.C. § 922(k). Id. B. Mr. Nevels Files His Motion to Strike/Dismiss Armed Career Criminal Enhancement, and Concedes in the Motion that He Has the Two Prior Juvenile Adjudications On August 1, 2005, Mr. Nevels filed a Motion to Strike/Dismiss Armed Career Criminal Enhancement. See Doc. 39. In that motion Mr. Nevels conceded that he had received the two prior juvenile adjudications for armed robbery. See Doc. 39 at 1, 2. Under the heading, "Information Regarding Juvenile Adjudications" he stated: In Count I of case 89JD646, Mr. Nevels was 11 years-old when he committed the offense of aggravated robbery, a class 3 felony, occurring on January 25, 1989. Count II in case 89JD646 was originally charged in a separate Petition for Delinquency, case 89JD1045, which was dismissed. Count II was then added to case 89JD646. Mr. Nevels was 12 years-old when he committed this offense of aggravated robbery, a class 3 felony occurring on September 13, 1989. On April 5, 1990, Mr. Nevels was adjudicated and declared to be a juvenile delinquent for the offenses of Aggravated Robbery pursuant to C.R.S. § 18-4-302(1)(c). Mr. Nevels was sentenced to a determinate period of two years in the Department of Institutions for the above offenses, concurrent to one another.

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Id. at 2. On October 14, 2005, this Court denied without prejudice Mr. Nevels' Motion to Strike/Dismiss Armed Career Criminal Enhancement. See Doc. 53. C. The Trial A four-day jury trial was held before this Court from March 6 to March 9, 2006. Mr. Nevels stipulated at trial, with respect to the charge in Count One of the Indictment, that "[p]rior to the alleged possession of the firearm and ammunition named in the Indictment, [Mr. Nevels] had been convicted of a crime punishable by imprisonment for a term exceeding one year." See Doc. 166 (Transcript of Jury Trial, Vol. 1) at 8, lines 1017. See also id. at 9, lines 8-14. At the conclusion of the trial the jury rendered its verdict, finding Mr. Nevels guilty on Counts One and Two of the Second Superseding Indictment. See Doc. 118. D. The Parties' Sentencing Statements, the Presentence Investigation Report, and the Addenda to the Presentence Investigation Report On March 28, 2006, the government filed its Sentencing Statement with this Court. See Doc. 124. Under the heading "Additional Facts Relevant to Sentencing" the government stated: The government contends that defendant's criminal history qualifies him as an Armed Career Criminal pursuant to 18 U.S.C. § 924(e). In case number 89JD646, Denver County, defendant was charged with one count of aggravated robbery, in violation of Colo. Rev. Stat. 18-4-302(1)(c), a class three felony, with an offense date of January 25, 1989. In case number 5

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89JD1045, Denver County, defendant was charged with one count of aggravated robbery, in violation of the same statute, Colo. Rev. Stat. 18-4-302(1)(c), with an offense date of September 13, 1989. The petition in 89JD1045 was later dismissed and its sole count added as a second count to the petition in 89JD646. Defendant was adjudicated guilty on both counts of aggravated robbery. Notably, both counts specify "a deadly weapon, to-wit: GUN". Id. at 7. Two days later, on March 30, 2006, attorney Dana Casper filed on behalf of Mr. Nevels his Sentencing Statement. See Doc. 125. Under the heading "Relevant Facts" Ms. Casper asserted: "Defense counsel agrees with most of the facts presented by the Government in its Sentencing Statement except as noted below." Id. at 2. Ms. Casper then identified some facts in dispute. She did not, however, indicate that Mr. Nevels' prior felony convictions ­ as set forth in the government's Sentencing Statement under the heading "Additional Facts Relevant to Sentencing" ­ were in dispute. Id. at 2-3. The U.S. Probation Office prepared a Presentence Investigation Report ("PSI"), dated April 15, 2006. At paragraphs 74 and 75 of the PSI, the probation officer recounted the details of the two counts of armed robbery in Mr. Nevels' 1989 petition in delinquency. See PSI at 12-13, ¶¶ 74-75; 14-16, ¶¶ 87-104. The probation officer ultimately recommended a sentence of 310 months as to Count One of the Second Superseding Indictment, and 60 months as to Count Two, to run concurrently. Id. at R-1 (Sentencing Recommendation).

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On May 1, 2006, Mr. Nevels submitted to the probation officer a letter setting forth his objections to the PSI. See Addendum to the PSI at 1-3. He argued, among other things, that "even assuming the government can prove that Mr. Nevels has two prior juvenile adjudications for violent felonies, Mr. Nevels contends it is unlawful for the Court to use those prior adjudications to enhance his sentence under the ACCA." Id. at 3. Mr. Nevels also filed with this Court, on April 26, 2006, his First Motion Renewing Defense Motion to Strike/Dismiss ACCA Enhancement. See Doc. 128. By way of this motion, Mr. Nevels renewed his August 1, 2005 Motion to Strike/Dismiss Armed Career Criminal Enhancement, see Doc. 39, which this Court had earlier dismissed without prejudice. See Doc. 53. E. The Sentencing Hearing and Mr. Nevels' Sentence Mr. Nevels' sentencing hearing was held on May 26, 2006. See Doc. 134 (Minutes of Sentencing); see also Doc. 170 (transcript of sentencing hearing). Ms. Casper appeared at the hearing. See Doc. 170 at 1. She began the hearing by stating to this Court: But I want to tell the Court something from the outset, and I hope that this hasn't been misconstrued by the Court, but under no circumstances have we ­ has Mr. Nevels admitted that he has suffered the priors and it's our position the U.S. Attorney has to prove that he suffered the priors. Id. at 3, lines 19-24. This Court remarked that Mr. Nevels did not file any objection to the underlying 7

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juvenile proceedings, or any objection to the adult felony conviction. Id. at 3-4. In particular, this Court stated: What you have not contested, it seems to me, is the fact of the juvenile adjudications, the petitions and the adjudications upon each of the two counts as eventually consolidated before juvenile court Judge Dana Wakefield, nor have you contested the third adult predicate. . . . Id. at 4, lines 17-22. Ms. Casper then stated: Well, and Judge I have to tell the Court, and obviously to protect the record ­ the appellate record, and if the Court feels that I erred and the Court is not going to permit me to make that argument because I didn't submit an objection, then obviously I think that I'm ineffective in not doing that, because I think that the prosecutor has to still prove that he suffered these convictions. Id. at 5, lines 8-15. This Court responded: "Well, under Tenth Circuit authority if you don't object it is conceded." Id. at 5, lines 16-17. This Court then asked the government if copies of the juvenile records were available to be marked as an exhibit, and counsel for the government replied that the juvenile records had already been filed with the Court, as attachments 1 through 5 to the government's motion filed September 1, 2005. Id. at 5, lines 18-23; see also Doc. 45.1 This Court then admitted the documents. Id. at 6, lines 9-12.

The sentencing hearing transcript erroneously identifies the motion filed September 1, 2005 as Doc. 40, instead of Doc. 45. 8

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The Court found that the total offense level was 34, the criminal history category was VI, and the resulting imprisonment range was 262 to 327 months for Count 1 and 60 months for Count 2. Id. at 32, lines 8-11. Mr. Nevels was sentenced to a term of 300 months on Count 1 and a term of 60 months on Count 2, the terms to be served concurrently. Id. at 33, lines 5-9. Judgment was entered on June 1, 2006. See Doc. 139. F. The Appeal Mr. Nevels appealed to the U.S. Court of Appeals for the Tenth Circuit. He raised three issues in his appeal, one of which was his claim that, in sentencing him, this Court erred when it determined that one of his prior juvenile delinquency adjudications constituted a predicate offense under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(1). See Nevels, 490 F.3d at 802.2 In particular, Mr. Nevels argued to the Circuit that this Court erroneously applied the "categorical approach," which only looks to the fact of conviction in determining that a juvenile conviction may serve as a predicate offense under the ACCA. He claimed instead that this Court should have examined the

The other two issues raised in Mr. Nevels' appeal were first, that the disclosure of a government witness's existence three days prior to trial denied him a fair trial, and second, that the government's introduction of expert testimony describing how he shot and killed an individual in his home was unfairly prejudicial in a firearms possession trial. See Nevels, 490 F.3d at 802. Neither of these other two issues is relevant to Mr. Nevels' present Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence. 9

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underlying facts of his juvenile conviction and found that it did not constitute an ACCA offense. 490 F.3d at 806. The Tenth Circuit found this claim to be without merit. 490 F.3d at 802. Mr. Nevels did not petition for certiorari. G. Mr. Nevels' Present Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence On June 26, 2008, Mr. Nevels filed with this Court his 2255 motion. Doc. 188. On July 3, 2008, this Court ordered the government to respond to the motion by August 4, 2008, see Doc. 191, which was subsequently extended to August 25, 2008. See Doc. 196. In his 2255 motion, Mr. Nevels sets forth four grounds on which he claims he is being held in violation of the Constitution, laws or treaties of the United States. He alleges in all four grounds that he has been the victim of ineffective assistance of counsel. In Ground One Mr. Nevels asserts that his counsel "failed to object to the underlying juvenile proceedings that resulted in . . . me being designated a career offender[,] trigger[ing] a higher sentence." See Doc. 188 at 4. He contends his counsel "admitted to being ineffective and I thought an appeal would be filed." Id. at 5. In Ground Two he contends that his counsel "failed to argue or object to my prior felony convictions which would qualify as a predicate violent offense[] which constitute convictions for purposes of determin[ing] Armed Career Criminal status." Id. at 5. He also claims that his counsel at this juncture stated to the Court, "I think that I'm ineffective." Id. 10

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In Ground Three Mr. Nevels alleges ineffective assistance of counsel and, in addition, alleges that this Court "abused its discretion by using two juvenile adjudications to enhance this Petitioner's sentence." Id. at 6-7. He contends that "[u]nder the U.S. Sentencing Guidelines a juvenile adjudication is deemed a 'set-aside' conviction under the Armed Career Criminal Act, [and] therefore not subject to the ACCA sentencing enhancements." Id. at 7. He alleges that "[t]he calculations under U.S.S.G. §§ 4B1.1 and 4B1.2 do not apply to this Petitioner." Id. He also alleges, again, that his counsel "apologized" to the court and announced she was ineffective. Id. Finally, in Ground Four, Mr. Nevels alleges his counsel "performed unreasonably in failing to object to the multiple level enhancement, and the use of the PSR." Id. at 8. He claims that had his counsel "conducted a reasonable investigation of the law, she would have determined that the Court could not properly use the juvenile adjudication to enhance Petitioner's sentence to [a] 300 months imprisonment term." Id. Mr. Nevels contends he did not raise any issue in his 2255 motion to the Tenth Circuit in his appeal of this Court's judgment. Id. at 4-9. As the government shows below, this contention is erroneous. // ///

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III. A.

ARGUMENT

The Assistance Mr. Nevels' Counsel Provided Was Not Unconstitutionally Deficient, and Mr. Nevels Suffered No Actual Prejudice from His Counsel's Assistance 1. Legal Background

Generally, to establish a claim of ineffective assistance, a movant must show (1) that his counsel's performance fell below the constitutional minimum guaranteed by the Sixth Amendment, that is, "an objective standard of reasonableness," and (2) that his counsel's errors prejudiced him in that they "were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Strickland v. Washington, 466 U.S. 668, 687-88, 690 (1984). Prejudice is "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. In order to demonstrate prejudice, a movant must establish that counsel's performance rendered the proceedings "fundamentally unfair or unreliable." Lockhart v. Fretwell, 506 U.S. 364, 369 (1993). If the defendant fails to satisfy either prong of the Strickland test, the ineffective assistance of counsel claim must fail. See Strickland, 466 U.S. at 697. Counsel's performance is judged on a reasonableness standard, viewing all circumstances at the time when the conduct occurred. Strickland, 466 U.S. at 690; United

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States v. Smith, 10 F.3d 724, 728 (10th Cir. 1993). There is a strong presumption that counsel's performance was not ineffective and "f[ell] within the wide range of reasonable professional assistance." United States v. Clonts, 966 F.2d 1366, 1370 (10th Cir. 1992) (quoting Strickland, 466 U.S. at 689). To overcome this strong presumption, a defendant "must shoulder a heavy burden." Catches v. United States, 582 F.2d 453, 457 (8th Cir. 1978). The Supreme Court has recognized that [t]here is a strong presumption that counsel's performance falls within the wide range of professional assistance, ... the defendant bears the burden of proving that counsel's representation was unreasonable under prevailing professional norms and that the challenged action was not sound strategy. The reasonableness of counsel's performance is to be evaluated from counsel's perspective at the time of the alleged error and in light of all the circumstances, and the standard of review is highly deferential. Kimmelman v. Morrison, 477 U.S. 365, 381 (1986) (citations omitted) (emphasis added). This Court must "give considerable deference to an attorney's strategic decisions and 'recognize that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.'" Bullock v. Carver, 297 F.3d 1036, 1044 (10th Cir. 2002) (quoting Strickland, 466 U.S. at 690). In reviewing such claims "a court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies." Strickland, 466 U.S. at 697. "If it is easier to dispose

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of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed." Id. In the instant case, viewing all the circumstances at the time when the conduct occurred, the performance of defense counsel was objectively reasonable and effective, and Mr. Nevels suffered no prejudice. 2. Counsel's Failure to Object, Prior to the Sentencing Hearing, to the Underlying Juvenile Proceedings Did Not Constitute Ineffective Assistance

Mr. Nevels argues in Grounds One, Two, Three and Four of his 2255 motion that his counsel's assistance was ineffective because she failed to object to the underlying juvenile proceedings, and as a result he was designated a career offender, triggering a higher sentence. See Doc. 188 at 4. He does not, however, argue in his habeas petition that he did not, in fact, have the prior juvenile adjudications. He does not contend that the Juvenile Court documents presented by the government and admitted into evidence by this Court were fraudulent or forged. He does not claim that the documents pertained to some other juvenile named Clemmeth Nevels. In essence, he does not allege that this is a case of mistaken identity. No evidence suggests that the juvenile records were not accurate copies of his records. Although his attorney did argue at the sentencing hearing, "under no circumstances . . . has Mr. Nevels admitted that he has suffered the priors," see Doc. 170 (transcript of sentencing hearing) at 3, lines 21-22, Mr. Nevels has failed to

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demonstrate that he suffered any prejudice whatsoever from his counsel's alleged error. See Strickland, 466 U.S. at 687 (to show ineffective assistance, the defendant must prove that he was prejudiced by the alleged error). Indeed, given the lack of any showing whatsoever by Mr. Nevels that the records at issue did not pertain to him, his counsel's "failure" to object earlier to the records is fully understandable. Mr. Nevels must overcome the "strong presumption" that Ms. Casper's performance fell within "the wide range of reasonable professional assistance." Kimmelman, 477 U.S. at 381. Because nothing in the records suggests that the juvenile records were not his records, Ms. Casper's failure to object earlier to these records cannot be construed to be outside the wide range of reasonable professional assistance. To the extent Mr. Nevels argues in his 2255 motion that the juvenile adjudications did pertain to him, but that Ms. Casper should have objected at sentencing to the validity of these prior juvenile adjudications, his argument is without merit. The law is wellestablished that a defendant in a federal sentencing proceeding may not collaterally attack the validity of prior state convictions used to enhance his sentence. See, e.g., United States v. Delacruz-Soto, 414 F.3d 1158, 1164 (10th Cir. 2005), citing Custis v. United States, 511 U.S. 485, 487 (1994). Custis, decided under the Armed Career Criminal Act, acknowledged an exception where a defendant can show he suffered the complete deprivation of counsel, in violation of the Sixth Amendment, but that exception does not

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benefit Mr. Nevels. Mr. Nevels was represented by counsel. See Doc. 170 at 10, lines 68 ("Defendant, represented by counsel, defendant here, pled guilty. . . ."); see also Doc. 45, Att. 1-5. Ms. Casper's conduct was eminently reasonable, and there was no error. Notably, Mr. Nevels does not contend that either his prior juvenile adjudications or his prior felony conviction were "facially insufficient." This Court has held that a trial attorney's failure to object to the use of a "facially insufficient" prior conviction for purposes of classifying a defendant as a career offender constitutes deficient representation. See United States v. Kissick, 69 F.3d 1048, 1056 (10th Cir.1995). Here, however, nothing suggests that any of the prior convictions are not facially sufficient. Ultimately, there has been no showing that even if, before the sentencing hearing, Ms. Casper had raised an earlier objection to the prior convictions this Court would have reversed its prior ruling and excluded the convictions. Mr. Nevels does not now identify any meritorious defense that was overlooked by his counsel. It is not the responsibility of counsel to present her client with a defense unless, under the facts or the law, the defense has some merit. Thus, Mr. Nevels cannot point to any deficiency in his legal representation, nor to any prejudice he suffered. The only prejudice he has claimed is belied by the record, which shows that the prior convictions were properly admitted by this Court. Mr. Nevels has failed to overcome the "strong presumption" that Ms. Casper's performance was

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within "the wide range of reasonable professional assistance," and has failed to demonstrate that he suffered any prejudice whatsoever from the errors he alleges his counsel committed. B. Mr. Nevels' Claim That His Prior Juvenile Delinquency Adjudications Did Not Constitute Predicate Offenses under the Armed Career Criminal Act Is Procedurally Barred In Ground Two of his 2255 motion Mr. Nevels argues that his counsel's assistance was ineffective because she failed to object to his prior felony convictions "which would qualify as a predicate violent offense[] which constitute convictions for purposes of determin[ing] Armed Career Criminal status." Doc. 188 at 5. Similarly, in Ground Three he contends that this Court abused its discretion by using two juvenile adjudications to enhance this Petitioner's sentence." Id. at 6-7. He contends that "[u]nder the U.S. Sentencing Guidelines a juvenile adjudication is deemed a 'set-aside' conviction under the Armed Career Criminal Act, [and] therefore not subject to the ACCA sentencing enhancements." Id. at 7. These claims are procedurally barred under Section 2255. The Supreme Court has expressly held that, once a defendant's chance to appeal an issue has been waived or exhausted, a court faced with a subsequent collateral attack is entitled to presume that he stands fairly and finally convicted, especially when, as here, "he already has had a fair opportunity to present his federal claims to a federal forum." United States v. Frady, 456 U.S. 152, 164 (1982).

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Mr. Nevels has already exhausted the claims in Grounds Two and Three in his appeal to the U.S. Court of Appeals for the Tenth Circuit. He argued to the Tenth Circuit that, in sentencing him, this Court erred when it determined that one of his prior juvenile delinquency adjudications constituted a predicate offense under the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e)(1). See Nevels, 490 F.3d at 802 (10th Cir. 2007). In particular, Mr. Nevels argued to the circuit court that this Court erroneously applied the "categorical approach" and looked only to the fact of conviction in determining that his juvenile conviction could serve as a predicate offense under the ACCA. Id. at 806. The Tenth Circuit found this claim to be without merit. 490 F.3d at 802. The circuit court also rejected Mr. Nevels' argument that, because his juvenile adjudications are defined under Colorado state law to be "delinquent acts" rather than "crimes," his convictions fall outside the definition of the ACCA. Id. at 809, n.6. Mr. Nevels has had the chance to raise the to the Tenth Circuit the claims he advances in Grounds Two and Three of his 2255 motion. This Court is therefore entitled to presume that he stands fairly and finally convicted. See Frady, 456 U.S. at 164. Grounds Two and Three are procedurally barred. III. CONCLUSION

For the foregoing reasons, Mr. Nevels' Section 2255 motion should be denied and this matter dismissed without a hearing.

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DATED: This 25 th day of August, 2008. Respectfully submitted, TROY A. EID United States Attorney

s/ Michael C. Johnson MICHAEL C. JOHNSON Assistant United States Attorney DC# 391813 1225 17th Street, Suite 700 Denver, Colorado 80202 (303) 454-0100 (303) 454-0461 (fax) Email: [email protected] [email protected] Attorneys for Respondents-Appellees

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CERTIFICATE OF SERVICE I hereby certify that on this 25th day of August, 2008, I electronically filed the foregoing ANSWER TO MOTION UNDER 28 U.S.C. § 2255 TO VACATE, SET ASIDE, OR CORRECT SENTENCE with the Clerk of Court using the ECF system. I also hereby certify that I have mailed or served the document or paper to the following non CM/ECF participant by U.S. mail:

Clemmeth D. Nevels Fed. No. 33192-013 U.S.P. Allenwood P.O. Box 3000 White Deer, Pennsylvania 17887

s/ Michael C. Johnson MICHAEL C. JOHNSON Assistant United States Attorney United States Attorney's Office

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