USA v. Bush et al

1
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-------------------------------------------------------x
UNITED STATES OF AMERICA,
- against -
JEFFREY BUSH,
Defendant.
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MEMORANDUM & ORDER
19-CR-378 (S-3) (PKC)
PAMELA K. CHEN, United States District Judge:
Defendant Jeffrey Bush, a prisoner in federal custody and proceeding pro se, petitions for
habeas relief under 28 U.S.C. § 2255 (“Section 2255”).1 	Arguing that his trial attorney was
ineffective for not seeking to withdraw his guilty plea that was entered pursuant to Federal Rule
of Criminal Procedure (“Rule”) 11(c)(1)(B), Bush seeks to have his sentence reduced from 114
months to a sentence within the range of 70–87 months. 	(Petition (“Pet.”), Dkt. 539, at 5, 10;
Reply in Supp. of Pet. (“Reply”), Dkt. 560, at 3–5.) For the reasons stated below, Bush’s Petition
is denied.
BACKGROUND
On February 7, 2023, Bush pled guilty to racketeering conspiracy before the Honorable
Ramon E. Reyes, Magistrate Judge, pursuant to a plea agreement with the Government.2 (Min.
1 Because Bush is proceeding pro se, the Court liberally construes his Petition and
interprets it “to raise the strongest arguments that [it] suggest[s].” See Triestman v. Fed. Bureau
of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (per curiam) (italics and citation omitted). But the
Court “need not act as an advocate for pro se litigants.” Davis v. Kelly, 160 F.3d 917, 922 (2d Cir.
1998).
2 As discussed in detail in the Government’s opposition, Bush’s agreement was the product
of extensive plea negotiations between the parties, largely led by Bush’s counsel who is the subject
of this petition, Lisa Scolari. (See Govt. Opp’n to Pet. (“Opp’n”), Dkt. 552, at 2–5.)
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Entry dated 02/07/2023, Dkt. 407; J., Dkt. 514.) 	At the plea proceeding, Bush’s counsel, Lisa
Scolari, and Bush himself confirmed that they had discussed the operation of the Sentencing
Guidelines (“Guidelines”). 	(Plea Hr’g Tr. (“Plea Tr.”), Dkt. 418, at 7, 15.) 	In addition to
discussing the sentencing process and the Guidelines, (id. at 15–18), Judge Reyes specifically
advised Bush that his plea agreement contained a Guidelines estimate of 168 to 210 months and
that Bush had “stipulated to that guideline calculation,” (id. at 17). 	Bush confirmed his
understanding of this aspect of his plea agreement. (Id.) Judge Reyes also explained to Bush that
his plea agreement specified that both parties “agreed to recommend to Judge Chen pursuant to
Federal Rule of Criminal Procedure 11(c)(1)(B) that [he] be sentenced within that guideline
calculation, 168 to 210 months,” which Bush again confirmed that he understood. (Id. at 17–18.)
Ms. Scolari also noted on the record that she had “explained to Mr. Bush that although we are
making a joint recommendation, the judge is not bound by that recommendation. And in addition,
we can ask Judge Chen to consider anything under [18 U.S.C. § 3553(a)] that would be relevant,
including considering the potential correct imposition of the cocaine versus crack guidelines and
any other factor, such as the extremely harsh conditions that people at [Metropolitan Detention
Center] have experienced while Mr. Bush has been there.” (Id. at 18 (emphasis added).)
The Court accepted Bush’s guilty plea at a status conference held on March 30, 2023.
(3/30/2023 Min. Entry.) Before accepting the plea, the Court confirmed that Bush was knowingly
entering into a Rule 11(c)(1)(B) guilty plea with a stipulated Guidelines range:
THE COURT: The other thing I wanted to clarify with you, because you have a
somewhat unique feature to your agreement, I shouldn’t say unique, but it’s slightly
different than many plea agreements, you’ve agreed to what’s called an 11(c)(1)(B)
plea agreement. Do you understand that?
DEFENDANT BUSH: Yes.
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THE COURT: Okay. 	Now your plea agreement in particular says that you’ve
agreed, or you and the government have the [sic] agreed, to recommend to me that
I sentence you within a guideline range of 168 to 210 months. Do you understand
that?
DEFENDANT BUSH: Yes.
THE COURT: So you’re bound by that agreement. You understand?
DEFENDANT BUSH: Yes.
THE COURT: Now the only reason I wanted to have you come back in here is
because on page 18, again, at your plea transcript, which is dated February 7, 2023
-- yes, Ms. Scolari at lines 5 through 12 did explain, or seek to clarify, that she
would still urge me to consider certain sentencing factors. And the only reason I
wanted to see you again is to make sure you understand that even though Ms.
Scolari certainly can, and I’m sure will do that at sentencing, you are still bound by
recommending a sentence within the guidelines range. In other words, Ms. Scolari
will argue all of these sentencing factors, but she cannot say to me so, therefore,
you should give my client a sentence below the guideline range. Do you understand
that?
DEFENDANT BUSH: Yes.
THE COURT: Okay. And even with that restriction on her ability to argue for a
non-guideline sentence, do you still want to plead guilty?
DEFENDANT BUSH: May I talk to her?
THE COURT: Yes, take a moment. (Pause in the proceedings.)
THE COURT: Okay. 	So, Mr. Bush, do you understand that even though your
lawyer will be free to argue certain sentencing factors, she will not be allowed to
argue that I should give you a below guideline sentence. Do you understand that?
DEFENDANT BUSH: But the decision is basically up to you, right?
THE COURT: Correct.
DEFENDANT BUSH: All right, yes.
THE COURT: But do you understand that she cannot say to me, Judge, please give
him a sentence below 168 months. Do you understand that?
DEFENDANT BUSH: Yes.
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THE COURT: Okay. 	And still you want to plead guilty, correct?
DEFENDANT BUSH: Yes.
THE COURT: All right.
(Status Conference Tr. (“SC Tr.”), Dkt. 532, at 7–9.)
The parties appeared for sentencing on July 14, 2023. 	(07/14/2023 Min. Entry.)
Notwithstanding Bush’s Rule 11(c)(1)(B) plea, Ms. Scolari strenuously argued, both in writing
and before the Court, for a sentence well below the stipulated Guidelines range of 168–210 months.
(Def.’s Sentencing Mem., Dkt. 504, at 3–4 (arguing that the Court should impose a sentence within
a range of 63–78 months); Sentencing Tr. (“Sent. Tr.”), Dkt. 524, at 34–38, 47–60.) Ms. Scolari
specifically argued that the Court should consider the EQUAL Act, a bill proposed in Congress
that sought to eliminate the sentencing disparity between crack and powder cocaine. 	(Def.’s
Sentencing Mem., Dkt. 504, at 3; Sent. Tr., Dkt. 524, at 38–393, 55–59; id. at 54 (Solari arguing
that “[t]he Government seems to be saying because we have a negotiated agreed-upon plea, the
EQUAL Act doesn’t apply here because of who he is”).)4 The Court had applied the EQUAL Act,
with the Government’s agreement, as a mitigating factor in sentencing one of Bush’s co-
defendants. (Def.’s Sentencing Mem., Dkt. 504, at 3.)
3 The Court notes that on page 38 of the transcript, there is a mis-attribution of the Court’s
statements to Assistant United States Attorney (“AUSA”) Nicholas Moscow.
4 At the time of sentencing, the Justice Department had adopted a departmental policy
encouraging prosecutors “to promote the equivalent treatment of crack and powder cocaine
offenses,” consistent with the pending EQUAL Act. See Memorandum from the Att’y Gen. to All
Fed. 	Prosecutors 	4–5 	(Dec. 	16, 	2022) 	(available 	at 	https://www.justice.gov/d9/2022-
12/attorney_general_memorandum_-_additional_department_policies_regarding_charges_pleas_
and_sentencing_in_drug_cases.pdf); Ortiz v. Orange Cnty., New York, No. 23-CV-2802 (VB),
2024 WL 113705, at *2 n.4 (S.D.N.Y. Jan. 10, 2024) (taking judicial notice of documents that are
publicly accessible on official government sites). 	Ultimately, the EQUAL Act was not enacted
into law. See EQUAL Act of 2021, H.R. Rep No. 117-28 (2021).
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In the end, based on a number of factors, including the potential mitigating force of the
EQUAL Act, the Court varied significantly downward from the stipulated Guidelines range of
168–210 months to impose a sentence of 114 months’ incarceration. (Sent. Tr., Dkt. 524, at 69–
70, 75–76, 86–95 (“I have certainly taken note of the fact that there is a historical disparity between
the treatment under the guidelines of crack offenses and powder cocaine offenses. . . . So, there’s
certainly some reason to think a sentence not quite as high as the guideline range is appropriate
because the guideline range is predicated to a good degree on the operation of the current crack
guidelines.”).)
LEGAL STANDARD
Section 2255 permits “[a] prisoner in custody under sentence of a [federal] court” to “move
the court which imposed the sentence to vacate, set aside or correct the sentence.” 	28 U.S.C.
§ 2255(a). To obtain such habeas relief, the defendant must demonstrate “a constitutional error, a
lack of jurisdiction in the sentencing court, or an error of law or fact that constitutes a ‘fundamental
defect which inherently results in a complete miscarriage of justice.’” Cuoco v. United States, 208
F.3d 27, 30 (2d Cir. 2000) (quoting United States v. Bokun, 73 F.3d 8, 12 (2d Cir. 1995)).
In general, a Section 2255 motion is not a substitute for a direct appeal. 	See generally
United States v. Frady, 456 U.S. 152, 164–66 (1982) (“[A] collateral challenge may not do service
for an appeal.”). Thus, “[w]here a defendant has procedurally defaulted a claim by failing to raise
it on direct review, the claim may be raised in [a Section 2255 motion] only if the defendant can
first demonstrate either ‘cause’ and actual ‘prejudice,’ or that he is ‘actually innocent.’” Bousley
v. United States, 523 U.S. 614, 622 (1998) (internal citations omitted); see also Campino v. United
States, 968 F.2d 187, 190 (2d Cir. 1992) (“It is generally accepted that a procedural default of even
a constitutional issue will bar review under [Section] 2255, unless the defendant can meet the
‘cause and prejudice’ test.” (collecting cases)). 	But “an ineffective-assistance-of-counsel claim
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may be brought in a collateral proceeding under [Section] 2255, whether or not the petitioner could
have raised the claim on direct appeal.” Massaro v. United States, 538 U.S. 500, 504 (2003).
DISCUSSION
I. 	Defendant Cannot Show Ineffective Assistance of Counsel
Defendant asserts that his counsel was ineffective because she failed to withdraw his guilty
plea upon hearing his concerns about the stipulated-to Guidelines range and instead reassured him
that his plea would not stop him from receiving the cocaine Guidelines. (See Pet., Dkt. 539, at 5;
see also Ex. A, Dkt. 539 (documenting Defendant’s concern about his Rule 11(c)(1)(B) plea and
counsel’s response that the plea “will not stop [him] from getting the coke guidelines and [that]
the judge will apply the coke guidelines”).) Defendant contends that, if he declined the deal and
went to trial, he would have received a lower sentence due to the imposition of the “powder
guidelines.” (See Pet., Dkt. 539, at 5.)
A. 	Ineffective Assistance of Counsel
A claim of ineffective assistance of counsel is evaluated under the two-pronged test
established in Strickland v. Washington, 466 U.S. 668 (1984). See Terry Williams v. Taylor, 529
U.S. 362, 390 (2000) (affirming that ineffective assistance of counsel claims “are squarely
governed” by Strickland); see also Bennett v. United States, 663 F.3d 71, 84 (2d Cir. 2011)
(applying Strickland to ineffective assistance of counsel claims). Under that two-pronged test, a
defendant must show that “counsel’s performance was deficient” and that “the deficient
performance prejudiced the defense.” Strickland, 466 U.S. at 687. The defendant bears the burden
of showing deficiency and prejudice. Weaver v. Massachusetts, 582 U.S. 286, 299 (2017).
The “deficiency” prong of Strickland requires the defendant to “show that counsel’s
representation fell below an objective standard of reasonableness.” Strickland, 466 U.S. at 688.
This standard of reasonableness encompasses a “wide range of professionally competent
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assistance,” id. at 690, and requires the court to “indulge a strong presumption that counsel’s
conduct falls within [that] wide range,” id. at 689. 	In fact, a counsel’s “strategic choices made
after 	thorough 	investigation 	of 	law 	and 	facts 	relevant 	to 	plausible options 	are virtually
unchallengeable.” Id. at 690–91; see also Greiner v. Wells, 417 F.3d 305, 319 (2d Cir. 2005) (“We
will not normally fault counsel for foregoing a potentially fruitful course of conduct if that choice
also entails a ‘significant potential downside.’” (quoting Sacco v. Cooksey, 214 F.3d 270, 275 (2d
Cir. 2000))). There are, however, no bright line or mechanical rules to determine what constitutes
a deficient performance. Given the “countless ways to provide effective assistance in any given
case,” a court evaluating an ineffectiveness claim “must judge the reasonableness of counsel’s
challenged conduct on the facts of the particular case, viewed as of the time of counsel’s conduct.”
Strickland, 466 U.S. at 689–90. 	“[T]he court should keep in mind that counsel’s function, as
elaborated in prevailing professional norms, is to make the adversarial testing process work in the
particular case.” 	Id. at 690. 	A defendant cannot establish ineffective assistance where he
“instructed his counsel to pursue a course of action that [he] now complains [of].” United States
v. Wellington, 417 F.3d 284, 289 (2d Cir. 2005) (citing Roe v. Flores–Ortega, 528 U.S. 470, 477
(2000)).
The “prejudice” prong of Strickland requires the defendant to “show that there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” 	Strickland, 466 U.S. at 694. 	This standard does not require the
defendant to show that counsel’s deficient performance “more likely than not altered the outcome
of the case.” Id. at 693. But at the same time, merely showing that counsel’s errors “had some
conceivable effect on the outcome of the proceeding” is insufficient. See id.; see also Lindstadt v.
Keane, 239 F.3d 191, 204 (2d Cir. 2001) (“The level of prejudice the defendant need demonstrate
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lies between prejudice that ‘had some conceivable effect’ and prejudice that ‘more likely than not
altered the outcome in the case.’” (quoting Strickland, 466 U.S. at 693)). 	Like the deficiency
prong, the prejudice prong is ultimately concerned with the reliability and fairness of the
proceeding, which can be undermined even if the defendant cannot show by a preponderance of
the evidence that counsel’s errors were outcome-determinative. See Strickland, 466 U.S. at 694.
Accordingly, a “reasonable probability” of prejudice under Strickland’s second prong “is a
probability sufficient to undermine confidence in the outcome.” Id.
Where, as here, a defendant asserts his counsel’s performance affected the outcome of the
plea process, the defendant must establish the prejudice requirement by showing that there “is a
reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would
have insisted on going to trial.” See Premo v. Moore, 562 U.S. 115, 129 (2011) (quoting Hill v.
Lockhart, 474 U.S. 52, 59 (1985)); Roy v. United States, 347 F. Supp. 3d 230, 237 (S.D.N.Y.
2018). “[T]his inquiry requires a fact-specific analysis that evaluates the weight of the evidence,
the consequences of various legal options, and any circumstances that may affect a decision to
enter a plea. Francis v. United States, No. 12-CV-1362 (AJN), 2013 WL 673868, at *3 (S.D.N.Y.
Feb. 25, 2013); see also Premo, 562 U.S. 130–32 (determining that a petitioner failed to show
prejudice in part because the evidence against him was strong). Such circumstances include, for
example, whether a petitioner “would have been acquitted or at least received a shorter sentence
after conviction.” 	United States v. Peterson, No. 18-CR-609 (HG), 2025 WL 1713122, at *4
(E.D.N.Y. June 19, 2025) (quoting Moore v. United States, No. 16-CR-167 (LAP), 2022 WL
2306910, at *3 (S.D.N.Y. June 27, 2022)); Goyal v. United States, No. 19-CR-844 (CS), 2025 WL
307236, at *3 (S.D.N.Y. Jan. 27, 2025) (quoting Hill, 474 U.S. at 59)); see Antoine v. Ercole, No.
11-CV-0088 (PKC), 2013 WL 4647497, at *16 (E.D.N.Y. Aug. 29, 2013).
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The court may reject an ineffective assistance claim if the defendant fails to prove either
Strickland prong. 	Strickland, 466 U.S. at 697 (“[T]here is no reason for a court deciding an
ineffective assistance claim to . . . address both components of the inquiry if the defendant makes
an insufficient showing on one.”). The court therefore need not consider the prejudice prong if a
defendant fails to demonstrate that his counsel’s performance was objectively unreasonable. See
United States v. Vegas, 27 F.3d 773, 778 (2d Cir. 1994). At the same time, the court may consider
the prejudice prong first if it is “easier to dispose of [the defendant’s] ineffectiveness claim.”
Strickland, 466 U.S. at 697; Hill, 474 U.S. at 60 (declining to determine “whether there may be
circumstances under which erroneous advice by counsel . . . may be deemed constitutionally
ineffective assistance of counsel” because the petitioner did not satisfy the prejudice prong); see
also Farrington v. Senkowski, 214 F.3d 237, 242 (2d Cir. 2000) (declining to consider the
deficiency prong because the defendant “was not prejudiced” by his attorney’s conduct).
B. 	Bush Has Not Established Prejudice
To resolve Defendant’s habeas claim, the Court need only consider the second prong of
Strickland: whether Bush has shown a “reasonable probability” of prejudice, i.e., that “but for
counsel’s unprofessional errors, the result of the proceeding would have been different.”
Strickland, 466 U.S. at 694.5 Bush argues, in effect, that had Ms. Scolari (successfully) moved to
5 The Court notes that, were it to consider the first prong, it would find that Bush also has
failed to establish that it was ineffective assistance for Ms. Scolari not to seek withdrawal of his
guilty plea. In characterizing the failure to seek to withdraw Bush’s guilty plea as a “decision,”
the Court accepts Bush’s representation that “[o]n July 14, 2023,” the day of Bush’s sentencing,
after “receiv[ing] the government sentencing memo and recommendation,” he told Ms. Scolari
that he “wanted to . . . pull the plea deal[,]” but that “Ms. Scolari convinced Bush once again he
will get the powder guidelines which was now 70–87 months.” (Reply, Dkt. 560, at 3.) However,
as the Government argues, there was no “fair and just reason” to move for withdrawal and thus
Ms. Scolari’s decision not to do so, “when there was no lawful basis for the Court to grant such a
motion, was . . . not constitutionally defective.” (Opp’n, Dkt. 552, at 8–9; see also Plea Tr., Dkt.
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withdraw Bush’s guilty plea, his Guidelines range would have been 70–87 months and he would
have received a sentence of less than 114 months—even if he was “to lose . . . every count at
tr[ia]l.” (See Pet., Dkt. 539, at 5; Reply, Dkt. 560, at 4–6.) The Court disagrees.
Although Defendant claims that, but for his counsel’s poor performance, he would have
pursued his right to trial, (see Reply, Dkt. 560, at 4), this assertion is insufficient to establish
prejudice under Strickland, see Boakye v. United States, No. 09-CV-8217, 2010 WL 1645055, at
*6 (S.D.N.Y. Apr. 22, 2010). 	As the Government convincingly argues, had Bush successfully
withdrawn his guilty plea and gone to trial, he would “almost certainly have been convicted of a
drug conspiracy, possession of a firearm during and in furtherance of a conspiracy, and conspiracy
to commit assault in aid-of racketeering.” 	(See Govt. Opp’n, Dkt. 552, at 9–10 (describing
substantial evidence of Bush’s involvement in the charged racketeering conspiracy, including
cooperator testimony, documentary and social media evidence, “extremely high-quality video”
showing Bush engaging in a drug transaction, and “strong witness testimony” as to Bush’s
possession of guns and his orchestration of a “violent gang assault”)); Antoine, 2013 WL 4647497,
at *16 (E.D.N.Y. Aug. 29, 2013) (determining defendant could not demonstrate prejudice because
“the evidence against him was strong, if not overwhelming” if he proceeded to trial); Sica v. United
States, No. 14-CR-462 (CS), 2019 WL 6341300, at *5 (S.D.N.Y. Nov. 26, 2019) (concluding
petitioner failed to show prejudice because if he rejected the plea, “the odds of the Government
failing to prove that his drugs were a but-for cause of any one of the three deaths were slim”). As
a result, Defendant would have faced a higher Guidelines range than the one stipulated to in his
418, at 17–18 (Bush confirming that he was knowingly and voluntarily entering into the Rule
11(c)(1)(B) plea agreement); SC Tr., Dkt. 532, at 3 (same).)
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Rule 11(c)(1)(B) plea agreement.6 (See Govt. Opp’n, Dkt. 552, at 9–10 (calculating a Guidelines
range of at least 135–168 months, plus a mandatory minimum consecutive sentence of 60 months,
for a total of 195–228 months, if Bush were convicted at trial of the offenses charged in the
superseding indictment)); Fifield v. Hunt, No. 06-CV-6235 (MAT), 2009 WL 4730322, at *5
(W.D.N.Y. Dec. 4, 2009) (“Petitioner cannot show prejudice because Petitioner received a more
favorable sentence than if he had proceeded to trial and been convicted on the charges in the
indictment.”); Peterson, 2025 WL 1713122, at *1, *4 (concluding a petitioner could not show
prejudice because, had he gone to trial, he was likely to be convicted and face a mandatory life
sentence, compared to the 192-month sentence he received through his plea).
“‘[P]urely speculative’ arguments about the impact of an error do not establish prejudice.”
DeCarlo v. United States, No. 08-CR-523 (CM), 2013 WL 1700921, at *4 (S.D.N.Y. Apr. 17,
2013) (quoting United States v. Weiss, 930 F.2d 185, 199 (2d Cir. 1991)). Here, Defendant offers
no persuasive arguments to show that he would have received a lower sentence if he had proceeded
to trial. Rather, given the benefits that he received by pleading guilty, including the dismissal of
other counts in the indictment,7 the “conservative estimate” of the amount of crack Bush sold used
6 The Court is unpersuaded by Defendant’s assertion that, had he proceeded to trial, he
would have received a lower Guidelines sentence because, according “to the AG Memo, the
government would have had to change the 280 grams of cocaine base in to [sic] the powered
guidelines.” 	(Reply, Dkt. 560, at 5.) 	The AG Memo explicitly stated it was solely providing
guidance, and was not “intended to create a substantive or procedural right or benefit, enforceable
at law, and may not be relied upon by a party to litigation with the United States.” AG Memo,
supra note 4, at 5 n.4. Moreover, even if the Court took the EQUAL Act into account after trial,
Bush’s sentence would not have been lower than 114 months because Bush would have started
with a higher Guidelines range than the stipulated-to range of 168–210 months.
7 Bush was also charged with conspiracy to commit assault in aid of racketeering,
conspiracy to possess with intent to distribute controlled substances, possession with intent to
distribute cocaine, and unlawful use of a firearm. (See Superseding Indictment (S-3), Dkt. 170;
07/14/2023 Min. Entry (dismissing these charges).)
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to calculate his sentence,8 the three-level reduction for acceptance of responsibility,9 and the fact
that Ms. Scolari vigorously advocated for a below-Guidelines sentence despite the stipulated-to
range, Defendant cannot show prejudice from his attorney’s decision not to seek to withdraw his
Rule 11(c)(1)(B) guilty plea. 	United States v. Vargas, No. 07-CR-1099-01 (NRB), 2014 WL
6850978, at *4 (S.D.N.Y. Dec. 3, 2014) (rejecting ineffective assistance of counsel claim where
“defense counsel successfully advocated for a sentence of the mandatory minimum term of
incarceration, which was substantially lower than the Guidelines sentencing range to which Vargas
had stipulated in his plea agreement”); United States v. Edwards, 214 F. App'x 57, 61 (2d Cir.
2007) (summary order) (declining to find prejudice where “a number of factors strongly indicate
that [petitioner] would not lightly have foregone the government’s plea deal,” including three-level
reduction of acceptance of responsibility); Morrison v. United States, No. 07-CR-3 (LAP), 2021
WL 1635852, at *4 (S.D.N.Y. Apr. 26, 2021) (finding no prejudice where, “as a result of his plea,
Petitioner received a reduced sentencing guidelines range and had some of the charges against him
dismissed, all of which would have been unavailable had he proceeded to trial”).
CONCLUSION
Bush’s petition for habeas relief under 28 U.S.C. § 2255 is denied. 	A certificate of
appealability shall not issue because the Court does not find that reasonable jurists could debate
that the motion “should have been resolved in a different manner” or that it presents issues
“adequate to deserve encouragement to proceed further.” See Miller-El v. Cockrell, 537 U.S. 322,
8 (See Sent. Tr., Dkt. 524, at 63 (explaining that the Court would not give much weight to
the potential guidelines calculated under the EQUAL Act given that, based on “all of the evidence
in the case,” the 280 grams of crack cocaine attributed to Bush at sentencing was “a gross
underestimate of the amount of crack that Mr. Bush [had] sold over the course of his time”).)
9 (See Pet., Dkt. 539, at 5.)
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336 (2003) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)); see also 28 U.S.C. § 2253(c)
(“A certificate of appealability may issue . . . only if the applicant has made a substantial showing
of the denial of a constitutional right.”).
SO ORDERED.
/s/ Pamela K. Chen
Pamela K. Chen
United States District Judge
Dated: February 2, 2026
Brooklyn, New York
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