Case 2:11-cr-00304-RCJ-PAL Document 157 Filed 11/22/23 Page 1 of 5
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`UNITED STATES DISTRICT COURT
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`DISTRICT OF NEVADA
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`UNITED STATES OF AMERICA,
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` Plaintiff,
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`DARRELL CONNERS,
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`Defendant.
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`vs.
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` 2:11-cr-00304-RCJ-PAL
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` ORDER
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`The Court must once again consider whether Darrell Conners is entitled to appeal the issue
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`of habeas relief in this case. In January 2023, Conners filed a Notice of Appeal seeking appellate
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`review of the Court’s Amended Judgment, (Dkt. 149), the Order on Amended Judgment, (Dkt.
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`148), the Order granting in part and denying in part his motion to vacate, (Dkt. 136), and “[a]ny
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`other orders entered by the district court that culminated in the resulting Amended Judgment[.]”.
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`(Dkt. 150 at 1).
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`Because the case arises under § 2255, making it subject to § 2253(c), the Ninth Circuit
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`remanded the case to this Court “for the limited purpose of granting or denying a certificate of
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`appealability[.]” (Dkt. 153 at 1). For the following reasons, the Court grants a certificate of
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`appealability as to two issues raised in Conners’ motion under § 2255. (See Dkt. 111).
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`Case 2:11-cr-00304-RCJ-PAL Document 157 Filed 11/22/23 Page 2 of 5
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`I.
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`Factual Background
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`In 2013, Conners entered into a plea agreement, waiving his right to file a § 2255 motion,
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`and was sentenced to 191 months in prison. (Dkt. 73). He has since filed multiple motions seeking
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`habeas relief, (see Dkt. 74, 81, 82), which were denied by this Court. (See Dkt. 76, 84). In 2018,
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`the Ninth Circuit granted Conners leave to file a § 2255 motion “for relief under Johnson v. United
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`States, 135 S. Ct. 2551 (2015)”, (Dkt. 108 at 1), which Conners soon filed. (Dkt. 111). The motion
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`was denied on the grounds that Johnson was “of no aid to Defendant[.]” (Dkt. 116 at 3). The
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`Court declined to reach Conners’ other arguments on the basis that “the Court of Appeals only
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`authorized the successive petition based on” the Johnson case. (Id.).
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`Conners successfully appealed the order, which was vacated and remanded by the Ninth
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`Circuit for the Court to “consider all claims raised in [Conners’] authorized, successive motion[.]”
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`(Dkt. 126 at 1). Now reviewing the four grounds for relief raised in the motion, (Dkt. 111), the
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`Court again denied habeas relief (1) as a result of the Johnson case, (2) due to an alleged legal
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`error by the Court, and (3) based on alleged insufficiencies in the indictment. (Dkt. 136 at 3–5).
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`But the Court did find persuasive his claim of ineffective assistance of counsel (“IAC”) and ruled
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`that it would hold a new sentencing hearing. (Id. at 5–6).
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`The Government sought reconsideration arguing both that it was not given an opportunity
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`to respond to Conners’ IAC claims and that the claims lacked merit. (Dkt. 137 at 1–2). After
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`holding a hearing on the motion, (Dkt. 146), the Court concluded that Counts 1 and 3 could “run
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`concurrent to [his] state court sentence.” (Dkt. 148 at 2). Therefore, the Court applied time served
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`on the state sentence for those counts, (id.), and amended the judgment to reflect that change. (Dkt.
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`149). Now, Conners seeks to appeal the Court’s order granting in part and denying in part the
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`Case 2:11-cr-00304-RCJ-PAL Document 157 Filed 11/22/23 Page 3 of 5
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`requested habeas relief and all relevant docket entries. (See Dkt. 150). In order to do so, he must
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`obtain a COA from this Court. Ali v. Grounds, 236 F. Supp. 3d 1241, 1267 n.13 (S.D. Cal. 2017),
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`aff’d, 772 F. App’x 580 (9th Cir. 2019).
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`II.
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`Legal Standard
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`Motions to vacate, authorized by 28 U.S.C. § 2255, cannot be appealed without a COA.
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`28 U.S.C. § 2253(c); Jennings v. Stephens, 574 U.S. 271, 282 (2015); James v. Giles, 221 F.3d
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`1074, 1076 (9th Cir. 2000) (explaining that “the issuance of a certificate of appealability is a
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`prerequisite to [appellate] assertion of jurisdiction”). To overcome Section 2253(c)’s “gate-
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`keeping function,” the appellant must make a substantial showing of the denial of a constitutional
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`right. Jennings, 574 U.S. at 282. Not to be confused with a merits analysis, a COA analysis asks
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`“only if the District Court’s decision was debatable.” Martinez v. Shinn, 33 F.4th 1254, 1261 (9th
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`Cir. 2022) (citation omitted).
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`“To meet this standard, the petitioner must demonstrate that the issues are debatable among
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`jurists of reason; that a court could resolve the issues in a different manner; or that the questions
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`are adequate to deserve encouragement to proceed further.” Id. (internal quotation marks and
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`citations omitted) (emphasis in original). The Supreme Court has noted that “a claim can be
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`debatable even though every jurist of reason might agree, after the COA has been granted and the
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`case has received full consideration, that petitioner will not prevail.” Buck v. Davis, 580 U.S. 100,
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`117 (2017) (cleaned up) (citation omitted). Accordingly, when determining whether a claim meets
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`the standard for appealability, courts should be mindful to use procedures “consonant with the
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`limited nature of the inquiry.” Id.
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`Case 2:11-cr-00304-RCJ-PAL Document 157 Filed 11/22/23 Page 4 of 5
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`III. Analysis
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`The four claims for habeas relief raised in Conners’ motion are that (1) his plea and
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`conviction under the Hobbs Act are invalid pursuant to the Supreme Court’s decision in Johnson,
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`(Dkt. 111 at 10), (2) the Court erred “by not advising petitioner before accepting his guilty plea
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`that it lacked authority to impose a sentence to be served concurrently with any state sentences,
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`(id. at 9–10); (3) Conners is “actually innocent” because “the necessary elements to support the
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`charge [were] not proven by the government,” (id. at 7–9), and (4) trial counsel was ineffective for
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`various reasons, (id. at 6–7). The Court’s order considering all four issues held that “the first three
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`of these claims are without merit,” but as to the IAC claim, “there is a likelihood that [the Court]
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`would have imposed its sentence to be concurrent to the foreseeable state sentence for the same
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`conduct” but for trial counsel’s ineffectiveness. (Dkt. 136 at 6).
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`The first and fourth claims raised in Conners’ motion meet the standard for issuance of a
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`COA. The Ninth Circuit’s order authorizing Conners to file his successive habeas motion noted
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`that “Johnson announced a new substantive rule that has retroactive effect in cases on collateral
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`review,” thus based on his prima facie showing for relief under Johnson, consideration under
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`§ 2255 was warranted. (Dkt. 108 at 1). Considering the novelty and importance of the question
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`raised in as a result of Johnson, the Court determines the issue “adequate to deserve encouragement
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`to proceed further.” See Martinez, 33 F.4th at 1261. Similarly, Conners’ fourth claim of IAC
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`raises issues that “are debatable among jurists of reason,” and therefore is appropriate for
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`appealability. See id. Accordingly, the Court certifies for appealability the grant of Conners’ IAC
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`claim and the resulting effects on his amended sentence.
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`Case 2:11-cr-00304-RCJ-PAL Document 157 Filed 11/22/23 Page 5 of 5
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`As to Conners’ second and third claims, the Court declines to certify those issues for
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`appealability. The second argument alleging that the Court erred is premised on “an incorrect
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`statement of law,” (Dkt. 136 at 4), thus, the Court “could [not have] resolve[d] the issues in a
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`different manner.” See Martinez, 33 F.4th at 1261. Similarly, Conners’ third claim necessarily
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`fails for two reasons. First, it fails because “[g]enerally, a criminal defendant cannot challenge the
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`failure to include an element on an indictment after pleading guilty.” (Dkt. 136 at 4–5) (citing
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`United States v. Gordon, 2021 WL 5238766, at *5 (D. Nev. Nov. 8, 2021)). Second, this result is
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`indisputable because the allegedly absent elements “can be easily inferred from the allegations of
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`the indictment even if they are not specifically mentioned.” (Id. at 5) (citing United States v.
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`Rivera-Sillas, 417 F.3d 1014, 1021 (9th Cir. 2005), amended, 2005 WL 2036900 (9th Cir. Aug.
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`25, 2005)).
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`CONCLUSION
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`IT IS HEREBY ORDERED that a Certificate of Appealability is GRANTED as to the
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`issues raised in the first and fourth claims raised in Conners’ Motion to Vacate, (Dkt. 111).
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`IT IS FURTHER ORDERED that a Certificate of Appealability is DENIED as to the issues
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`raised in the second and third claims raised in Conners’ Motion to Vacate, (Dkt. 111).
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`IT IS SO ORDERED.
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`Dated November 9, 2023.
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`_____________________________________
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` ROBERT C. JONES
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` United States District Judge
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`22, 2023.
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