UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

____________________________________ ) UNITED STATES OF AMERICA ) ) v. ) Criminal No. 10-0051-2 (PLF) ) Civil Action No. 19-1574 (PLF) KENNETH BENBOW, ) ) Defendant. ) ____________________________________)

MEMORANDUM OPINION AND ORDER

On August 26, 2021, Kenneth Benbow filed a Petition for a Certificate of

Appealability (“COA Petition”) [Dkt. No. 709]. Mr. Benbow seeks leave to appeal the Court’s

July 31, 2021 denial of his Motion to Vacate, Set Aside, or Correct His Sentence under

[Dkt. No. 613] and his Supplemental Motion to Vacate, Set Aside or Correct his

Sentence under

[Dkt. No. 642-1] to the United States Court of Appeals for the

District of Columbia Circuit. See United States v. Benbow, Criminal No. 10-0051-2, Civil

Action No. 19-1574,

(D.D.C. July 30, 2021). For the reasons discussed

below, the Court concludes that a certificate of appealability is not warranted and therefore

declines to issue one.

In a proceeding brought under

, the applicant cannot take an

appeal unless a circuit or a district judge first issues a certificate of appealability. See FED. R.

APP. P. 22(b)(1). A certificate of appealability may issue “only if the applicant has made a

substantial showing of the denial of a constitutional right.”

(c)(2). “A

‘substantial showing’ is a demonstration ‘that reasonable jurists could debate whether . . . the

petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further.’” Blount v. United States,

(D.C. Cir. 2017) (quoting Slack v. McDaniel,

(2000)). To

make such a showing “[w]here a district court has rejected the constitutional claims on the

merits, . . . [t]he petitioner must demonstrate that reasonable jurists would find the district court’s

assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel,

. On the other hand, “[w]hen the district court denies a habeas petition on procedural

grounds without reaching the prisoner’s underlying constitutional claim, a [certificate of

appealability] should issue when the prisoner shows, 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 debatable whether the district court was correct in its procedural

ruling.”

As pertinent here, on April 3, 2012, Mr. Benbow was convicted of, among other

things, one count of murder in aid of racketeering of Van Johnson, in violation of the Violent

Crimes in Aid of Racketeering (“VICAR”) statute,

(a)(1); one count of

attempted murder in aid of racketeering of Steven Robinson, in violation of the VICAR

statute,

(a)(5); and two counts of using a firearm during those crimes of

violence, in violation of

(c)(1), for the shootings of Mr. Johnson and Mr.

Robinson after they left a club in their car on September 23, 2008. See United States v.

Benbow,

, at *3-4. In his original and supplemental motions to vacate, set

aside, or correct his sentence under

, Mr. Benbow raised multiple claims for

relief, including ineffective assistance of trial counsel, ineffective assistance of appellate counsel,

and the government’s failure to abide by its obligations under Brady v. Maryland,

(1963). See id. at *5. In denying Mr. Benbow’s section 2255 motions, the Court determined,

2 among other things, that trial counsel did not render ineffective assistance by failing to argue

insufficiency of the evidence or by failing to file a motion to sever or for a mistrial, that Mr.

Benbow’s ineffective assistance of appellate counsel claim was time-barred and meritless, and

that Mr. Benbow’s Brady claim was procedurally barred pursuant to the procedural default rule

and similarly meritless. See id. at *7-11.

The Court addressed Mr. Benbow’s ineffective assistance of trial counsel claims

on the merits, and the Court concludes that no reasonable jurist would find the Court’s evaluation

of those claims to be debatable or wrong. See Slack v. McDaniel,

.

Regarding Mr. Benbow’s argument that trial counsel failed to make adequate

arguments regarding insufficiency of the evidence, Mr. Benbow’s trial counsel in fact argued

both at trial and in a post-trial motion for judgment of acquittal that there was insufficient

evidence to establish that Mr. Benbow was involved in co-defendant Mark Pray’s enterprise to

distribute cocaine, crack cocaine, and phencyclidine (i.e., PCP) to support convictions under the

VICAR statute. See United States v. Benbow,

, at *8-9. Mr. Benbow has not

convincingly demonstrated how this argument meaningfully differs from, or does not

encompass, the argument that Mr. Benbow suggests should have been argued by trial counsel:

that Mr. Benbow was not involved in the conspiracy at the time of the September 23, 2008

shootings. The latter argument is merely a subset of the former, and reasonable jurists would not

debate that Mr. Benbow cannot establish ineffective assistance of counsel simply by arguing that

trial counsel should have presented their arguments differently. See United States v. Wilson,

(D.D.C. 2014) (citing Strickland v. Washington,

(1984)).

3 Similarly, reasonable jurists would agree that Mr. Benbow’s trial counsel did not

render ineffective assistance of counsel by failing to file a motion to sever or for a mistrial

because such motions would have been futile. As the Court noted, Mr. Benbow has not

demonstrated any unfair prejudice stemming from being jointly tried with Mr. Pray and other

co-defendants that would have justified severance or granting a mistrial. See United States v.

Benbow,

, at *7-8. In his COA Petition, Mr. Benbow argues that he was

prejudiced because his counsel could not simultaneously argue that the testimony of one of the

government’s witnesses, Daryl Travers, was true in some respects yet false in others. See COA

Petition at 17-18. But “it is precisely the jury’s function to review the testimony of witnesses

and determine what factual conclusions to draw from that testimony,” United States ex rel.

Landis v. Tailwind Sports Corp., Civil Action No. 10-0976,

, at *15 (D.D.C.

Nov. 28, 2017) (emphasis omitted), and Mr. Benbow’s counsel was not precluded from arguing

that Mr. Travers could be believed in only some respects. Indeed, trial counsel did just that,

arguing that although Mr. Travers’s testimony that Mr. Benbow was not involved in Mr. Pray’s

drug distribution operation could be trusted, his testimony about the September 23, 2008

shootings could not. See United States v. Benbow,

, at *4.

Mr. Benbow’s other two claims are procedurally barred, and the Court concludes

that no reasonable jurist would doubt that the Court was correct in its procedural rulings. See

Slack v. McDaniel,

.

Mr. Benbow’s claim of ineffective assistance of appellate counsel, raised for the

first time in his supplemental motion to vacate his sentence, did not properly relate back to the

original motion to vacate and therefore was time-barred by the applicable one-year statute of

limitations. See United States v. Benbow,

, at *9. Equally clear, Mr.

4 Benbow’s Brady claim that the government failed to timely disclose materials related to Mr.

Travers’s witness testimony was procedurally defaulted because Mr. Benbow failed to raise the

claim on direct appeal and showed no cause for failing to do so. See

. Moreover,

even assuming the evidence provided through Mr. Travers’s testimony was exculpatory and the

government failed to timely disclose it, Mr. Benbow has not demonstrated how he was

prejudiced by its withholding. See

; see also United States v. Sitzmann,

(D.C. Cir. 2018) (per curiam) (“To satisfy the prejudice component [of a Brady

claim], the defendant must show that there is a reasonable probability that, had the evidence been

disclosed to the defense, the result of the proceeding would have been different.” (internal

quotation omitted)).

Accordingly, the Court concludes that Mr. Benbow has not “made a substantial

showing of the denial of a constitutional right.”

(c)(2). It therefore is hereby

ORDERED that Mr. Benbow’s Petition for a Certificate of Appealability [Dkt.

No. 709] is DENIED; and it is

FURTHER ORDERED that a certificate of appealability shall not issue.

SO ORDERED.

___________________________ /s/ PAUL L. FRIEDMAN United States District Judge

DATE: November 9, 2021

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