Hylton v. United States

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 UNITED STATES OF AMERICA, Case No. 2:17-cr-00086-HDM-NJK 4 Case No. 2:23-cv-01791-HDM Plaintiff, 5 v. ORDER 6 ANTHONY DELANO HYLTON, JR., 7 Defendant. 8 9 Before the court is a motion to vacate, set aside, or 10 correct sentence pursuant to 28 U.S.C. § 2255 (ECF No. 440) 11 filed by the defendant, Anthony Hylton (“Hylton”). The 12 government has opposed (ECF No. 443), and Hylton has replied 13 (ECF Nos. 448 & 449). 14 I. Background 15 On December 5, 2016, LVMPD responded to calls that a 16 vehicle was idling in the middle of a busy Las Vegas 17 intersection. Arriving around 6:13 a.m., Officers Hinkel and 18 Childers found Hylton asleep in the vehicle. They were 19 eventually able to wake him, and he exited the vehicle, telling 20 the officers that his license and registration were in the back. 21 While looking for the documents in the back seat, Officer Hinkel 22 discovered a closed gun case and, in it, a black .45 caliber 23 firearm with brown grips. Hinkel seized the firearm and took it 24 to his patrol car, where he ran a stolen records check. 25 Meanwhile, Childers conducted three field sobriety tests on 26 Hylton, two of which Hylton failed. After the tests, the 27 officers discussed the results and Childers commented that it 28 was so cold outside, he himself would probably fail. Hinkel 1 testified that at that time both officers were leaning toward 2 the belief that Hylton was not impaired. Childers then spoke 3 with his sergeant, who suggested that a Drug Recognition Expert 4 (“DRE”) be dispatched to more fully evaluate whether Hylton was 5 impaired. 6 While waiting for the DRE, at around 6:41 a.m., the 7 officers again asked for Hylton’s license and registration, and 8 Hylton again responded it was in the back of the car. Still 9 unable to locate the documents, the officers asked Hylton for 10 his name and date of birth. After Hylton provided this 11 information, they ran a background check at around 6:43 or 6:44 12 a.m., which returned the information that Hylton was a felon. At 13 6:49 a.m., the officers canceled the DRE and arrested Hylton for 14 being a felon in possession of a firearm. In the Computer Aided 15 Dispatch (“CAD”) log, Childers noted: “I conducted SFST’s on the 16 subject, who had zero clues on HGN. I had requested a unit that 17 was DRE certified, however I believed that my original SFST’s 18 sufficiently lead [sic] me to believe that the driver was not 19 under the influence . . .” (ECF No. 440 at 106-06). 20 A month and a half later, Hylton became a suspect in two 21 robberies of a Henderson Citi Bank that had occurred on October 22 7, 2016, and January 17, 2017. In both cases, an armed man 23 jumped the teller’s counter and then fled in a black Ford Escape 24 with its roof racks pushed all the way back. In the first 25 robbery, the gun discharged, leaving behind an expended 26 cartridge, a bullet and a nonexpended cartridge. Investigators 27 zeroed in on Hylton because surveillance revealed that his 28 girlfriend’s vehicle matched the vehicle used in both robberies, 1 and Hylton, who fit the general description of the robber, was 2 seen leaving his girlfriend’s residence. Upon identifying Hylton 3 and learning that he had been arrested in December 2016 with a 4 firearm matching the caliber of that used in the October 2016 5 robbery, investigating officers sought warrants to search both 6 his residence, located on Lots Hills, and his girlfriend’s 7 residence, on Rainbow Blvd. In Hylton’s residence, officers 8 recovered Winchester .45 caliber ammunition, a gun holster, and 9 several receipts dated October 7, 2016, apparently for payment 10 of debts. Ballistics tests later returned a match between the 11 gun seized from Hylton at the December traffic stop and the 12 ammunition left behind in in the first robbery. 13 Hylton was charged with two counts of armed bank robbery in 14 violation of 18 U.S.C. § 2113(a) and (d), two counts of use of a 15 firearm in a crime of violence in violation of 18 U.S.C. 16 § 924(c)(1), and one count (Count 3) of felon in possession of a 17 firearm in violation of 18 U.S.C. § 922(g). (ECF Nos. 8 & 30).1 18 Through counsel Dan Winder, Hylton filed a motion to 19 suppress, arguing, in part, that the traffic stop was 20 impermissibly prolonged (ECF No. 38). The magistrate judge, 21 without an evidentiary hearing, recommended that the motion be 22 denied, and the court adopted the report and recommendation. 23 (ECF Nos. 45 & 52). First through Winder and then through new 24 counsel, the Federal Public Defender’s office, Hylton moved for 25 reconsideration. The latter motion asserted that the court had 26 1 In procedural steps not relevant to the instant motion, the 27 indictment was ultimately superseded two more times. (See ECF Nos. 273, 328 & 390). Hylton’s conviction on Count Three is 28 pursuant to the third superseding indictment. 1 not considered the CAD report in concluding that the stop was 2 not unreasonably prolonged. This court granted partial 3 reconsideration and directed the magistrate judge to conduct a 4 limited evidentiary hearing regarding “(1) the duration of the 5 detention and (2) based upon the facts generated as a result of 6 the CAD report, whether or not that period of time was 7 reasonable.” (ECF No. 136). 8 At the evidentiary hearing, Officer Childers testified that 9 he believed Hylton might be impaired up until the time of the 10 arrest. He further testified that although his CAD entry stated 11 that he did not believe Hylton to be impaired, he wrote this 12 note to appease his sergeant, who had done him a favor by 13 calling out the DRE. 14 After the hearing, Hylton’s counsel filed a motion to 15 extend briefing, asking that the court additionally consider (1) 16 whether the officers’ testimony about smelling marijuana could 17 be believed, and (2) the impact of the seizure of the firearm 18 from Hylton’s vehicle without a warrant. (ECF No. 152). The 19 magistrate judge denied the motion. The magistrate judge then 20 issued a report and recommendation concluding that the stop was 21 unreasonably prolonged past the end of the Field Sobriety Tests. 22 To reach that conclusion, the magistrate judge disregarded 23 Childers’ testimony that, at the time he ran the records check, 24 he still believed Hylton might be impaired. Instead, the 25 magistrate judge concluded, the officers no longer believed 26 Hylton might be impaired by the end of their conversations about 27 the FSTs. The report therefore recommended suppression of all 28 evidence found after the stop was unreasonably prolonged, which 1 in this case amounted only to Hylton’s statements about the 2 firearm. (ECF No. 166). 3 This court did not adopt the magistrate judge’s conclusion 4 that the stop was unreasonably prolonged, holding instead that - 5 - for officer safety -- the mission of the stop did not end 6 until after the officers obtained Hylton’s identity and were 7 able to run a criminal background check. The court also 8 concluded that, even if it agreed with the magistrate judge that 9 the stop had been unreasonably prolonged, suppression was not 10 warranted under the inevitable discovery doctrine. 11 Trial on Counts One, Two, Four and Five were tried before a 12 jury on April 2, 2019. On April 4, 2019, the jury found Hylton 13 guilty on all four counts. In a bifurcated bench trial on the 14 felon in possession charge -- Count Three -- that followed, the 15 court found Hylton guilty of that charge, as well. 16 Before Hylton was sentenced, the parties agreed that, under 17 the recent Supreme Court decision of Rehaif v. United States, 18 588 U.S. 225 (2019), Count Three should be vacated and reset for 19 trial. Hylton later filed a motion to represent himself, which 20 ultimately was granted. Shortly after the motion was granted, 21 Hylton filed a motion to dismiss for spoliation and a motion to 22 suppress, both of which were denied. Hylton’s motion for 23 reconsideration was also denied. 24 Instead of proceeding to another bench trial, Hylton 25 entered a plea of guilty to Count Three. At the change of plea, 26 the parties and the court amply discussed all parties’ 27 understanding that Hylton was waiving his appellate rights with 28 respect only to Count Three. (See ECF No. 406 (Tr. 18-20)). 1 Hylton filed a notice of appeal. The Ninth Circuit affirmed 2 in a published opinion, holding, in relevant part, that the 3 criminal history check was a negligibly burdensome precaution 4 necessary to complete the stop safely, and therefore the stop 5 was not unreasonably prolonged. The appeals court further held 6 that the court’s “straight-forward application of the inevitable 7 discovery rule was not clearly erroneous.” United States v. 8 Hylton, 30 F.4th 842, 848 (9th Cir. 2022). 9 After his petition for writ of certiorari was denied by the 10 Supreme Court,2 Hylton filed the instant § 2255 motion. 11 II. Standard 12 Pursuant to 28 U.S.C. § 2255, a federal inmate may move to 13 vacate, set aside, or correct his sentence if: (1) the sentence 14 was imposed in violation of the Constitution or laws of the 15 United States; (2) the court was without jurisdiction to impose 16 the sentence; (3) the sentence was in excess of the maximum 17 authorized by law; or (4) the sentence is otherwise subject to 18 collateral attack. Id. § 2255(a). 19 III. Analysis 20 Hylton raises the following claims in his motion: (1) the 21 district court erred in not holding its own evidentiary hearing 22 before departing from the magistrate judge’s credibility 23 findings; (2) the government knowingly introduced false 24 testimony at the evidentiary hearing; (3) appellate counsel was 25 ineffective for failing to raise the failure to hold an 26 27 2 See https://www.supremecourt.gov/search.aspx?filename=/docket/ docketfiles/html/public/22-5741.html (last visited Mar. 17, 28 2025). 1 evidentiary hearing; (4) appellate counsel was ineffective for 2 failing to raise the court’s denial of the motion to extend 3 briefing; (5) all trial counsel were ineffective for failing to 4 challenge the search warrant for Hylton’s residence at Lots 5 Hills; and (6) attorney Winder was ineffective for failing to 6 contest the continued warrantless seizure of the firearm past 7 the records check.3 8 A. Substantive Claims 9 i. Waiver 10 Preliminarily, the government asserts that by way of his 11 plea agreement to Count Three, Hylton has waived all of his 12 collateral changes save and except for non-waivable ineffective 13 assistance of counsel claims. Except as to Count Three, the 14 court disagrees. 15 “As a general rule, a defendant may waive his right . . . 16 collaterally to attack his plea or sentence” and “[s]uch a 17 waiver is enforced if (1) the language of the waiver encompasses 18 the defendant’s right to appeal on the grounds raised, and (2) 19 the waiver is knowingly and voluntarily made.” United States v. 20 Rodriguez, 49 F.4th 1205, 1211–12 (9th Cir. 2022) (internal 21 punctuation and citations omitted). In his plea, Hylton 22 “knowingly and expressly waive[d] all collateral challenges, 23 including any claims under 28 U.S.C. § 2255, to defendant’s 24 conviction, sentence, and the procedure by which the district 25 court adjudicated guilt and imposed sentence, except non- 26 3 The government argues that Hylton’s motion fails to meet 27 pleading standards. The court disagrees. The claims are adequately presented, and the government was able to fully 28 respond to them. 1 waivable claims of ineffective assistance of counsel.” (ECF No. 2 374 at 12). However, the plea agreement pertains to only Count 3 Three, and the discussion at the change of plea hearing makes 4 clear that Hylton believed he was waiving his appellate and 5 collateral challenge rights with respect to Count Three only. 6 Even if the plea agreement could somehow be read to encompass 7 appellate and collateral challenges for all counts, the 8 discussion at the change of plea hearing requires a finding that 9 Hylton did not knowingly and voluntarily relinquish his right to 10 collaterally challenge as to all counts. Accordingly, the 11 government’s argument that the substantive claims at issue in 12 this motion have been waived is denied. Hylton’s substantive 13 claims are waived only with respect to Count Three. Thus, as to 14 Counts One, Two, Four and Five, the court addresses the 15 substantive claims.4 16 ii. Analysis 17 a. Failure to Conduct Evidentiary Hearing 18 Hylton’s first claim for relief asserts that his Due 19 Process rights were violated when the court rejected the 20 magistrate judge’s credibility finding without holding an 21 evidentiary hearing of its own. 22 “Federal habeas petitioners ‘are not entitled to habeas 23 relief based on trial error unless they can establish that it 24 resulted in ‘actual prejudice.’” Davis v. Ayala, 576 U.S. 257, 25 257 (2015) (quoting Brecht v. Abrahamson, 507 U.S. 619, 637 26 4 The substantive claims would likely be procedurally defaulted, 27 but because the government has not raised this defense, it is deemed waived. See United States v. Barron, 172 F.3d 1153, 1156– 28 57 (9th Cir. 1999). 1 (1993)); see also United States v. Montalvo, 331 F.3d 1052, 1058 2 (9th Cir. 2003) (“Brecht's harmless error standard applies to 3 habeas cases under § 2255[.]”). “Under this test, relief is 4 proper only if the federal court has grave doubt about whether a 5 trial error of federal law had substantial and injurious effect 6 or influence in determining the jury’s verdict.” Davis, 576 U.S. 7 at 268 (internal quotations and citations omitted). 8 In ruling on Hylton’s motion to suppress and the magistrate 9 judge’s report and recommendation, the court held: 10 Still unsure whether Hylton was impaired, the officers, even though they thought perhaps he was not 11 impaired, believed that it was appropriate, under the circumstances, for safety concerns, especially with 12 somebody that didn’t have a driver’s license, insurance, or anything that even permitted him to go 13 ahead and drive the car, until that was verified, they determined that they should have backup with DRE. And 14 the sergeant advised them that that was standard practice. And that’s exactly what they followed. 15 . . . 16 Now, if the Court had found, which I have not, as 17 the magistrate judge did, that after 20 minutes, instead of the 31 minutes when they were waiting for 18 the other officer to arrive, because one of the officers had some doubt as to the sobriety of the 19 defendant, after they had had a discussion and said he may not be impaired, but they still weren’t satisfied, 20 and had the additional agent coming out, if the Court had determined, as the magistrate judge did, that 21 that’s when it ended in terms of the reasonableness of the stop, which I don’t concur with because of the 22 fact he didn’t have registration, didn't have a license, hadn't given proper identification to the 23 officers, and, in fact, had failed two of the three sobriety tests, and under the very unusual 24 circumstances where they found him . . . if the Court had found, as the magistrate judge did, then there was 25 a basis for what the magistrate judge held, but, in addition, even if the Court had determined he was -- 26 that the stop was too extended under the circumstances, the criminal history would not be 27 suppressed. 28 (ECF No. 230 at 18, 20-22). 1 The court did not explicitly reject the magistrate judge’s 2 credibility finding. Rather, the court rejected the magistrate 3 judge’s legal conclusion that the stop was unreasonably 4 prolonged past the point of the FSTs. But even if the court’s 5 statements could be interpreted to implicitly reject the 6 magistrate judge’s credibility finding, any error would be 7 harmless. The court clearly held that regardless of whether the 8 officers continued to believe Hylton was impaired, the prolonged 9 traffic stop was reasonable in the interest of public safety 10 because Hylton had not provided his identification and other 11 required documentation. The magistrate judge’s limited 12 credibility finding thus had no impact on the court’s ultimate 13 conclusion that the stop was reasonably prolonged to run a 14 criminal history check, a finding that was affirmed by the Ninth 15 Circuit on appeal. Thus, as Hylton cannot show actual prejudice, 16 he has not established a due process violation and is not 17 entitled to relief on this ground. 18 b. Napue 19 Hylton’s second claim for relief asserts that the 20 prosecutor committed misconduct by knowingly introducing 21 Childers’ allegedly false testimony in violation of Napue v. 22 Illinois, 360 U.S. 264 (1959) and Mooney v. Holohan, 294 U.S. 23 103 (1935) (per curiam).5 24 A defendant’s due process rights are violated when a 25 prosecutor obtains a conviction by knowingly introducing false 26 5 The government has construed the second claim for relief, in 27 part, as a claim that it improperly withheld Brady evidence. However, Hylton has stated that he has not and is not raising 28 any such claim. (See ECF No. 448 at 7). 1 evidence or, knowing evidence is false, allowing it to go 2 uncorrected. Napue, 360 U.S. at 269-71. To prevail on a Mooney- 3 Napue claim, “the petitioner must show that (1) the testimony 4 (or evidence) was actually false, (2) the prosecution knew or 5 should have known that the testimony was actually false, and (3) 6 that the false testimony was material.” United States v. Zuno- 7 Arce, 339 F.3d 886, 889 (9th Cir. 2003). 8 Hylton’s arguments do not establish that Childers’ 9 testimony was actually false or -- more importantly -- that the 10 government knew or should have known it was false. Furthermore, 11 for the reasons set forth above, Hylton has not established that 12 Childers’ allegedly false testimony was material. Independent of 13 Childers’ subjective beliefs regarding Hylton’s impairment, the 14 prolonged stop was reasonable for the running of a criminal- 15 history check. Accordingly, Hylton is not entitled to relief on 16 this claim. 17 B. Ineffective Assistance of Counsel Claims 18 Ineffective assistance of counsel claims are governed by 19 Strickland v. Washington, 466 U.S. 668 (1984). Under Strickland, 20 a petitioner must satisfy two prongs to obtain habeas relief— 21 deficient performance by counsel and prejudice. 466 U.S. at 687. 22 With respect to the performance prong, a petitioner must carry 23 the burden of demonstrating that his counsel’s performance was 24 so deficient that it fell below an “objective standard of 25 reasonableness.” Id. at 688. “‘Judicial scrutiny of counsel’s 26 performance must be highly deferential,’ and ‘a court must 27 indulge a strong presumption that counsel’s conduct falls within 28 the wide range of reasonable professional assistance.’” Knowles 1 v. Mirzayance, 556 U.S. 111, 124 (2009) (citation omitted). In 2 assessing prejudice, the court “must ask if the defendant has 3 met the burden of showing that the decision reached would 4 reasonably likely have been different absent [counsel’s] 5 errors.” Strickland, 466 U.S. at 696. 6 i. Failure to Appeal Rejection of Credibility Finding 7 Hylton argues that his counsel was ineffective for failing 8 to argue on appeal that the court improperly rejected the 9 magistrate judge’s credibility finding. As discussed above, the 10 substantive claim underlying this ineffective assistance of 11 counsel claim is without merit. It is not reasonably likely, 12 then, that any such argument would have been successful on 13 appeal, and Hylton therefore cannot establish prejudice. 14 Further, “appellate counsel who files a merits brief need not 15 (and should not) raise every nonfrivolous claim, but rather may 16 select from among them in order to maximize the likelihood of 17 success on appeal.” Smith v. Robbins, 528 U.S. 259, 288 (2000). 18 Given the court’s finding that the stop was reasonably prolonged 19 regardless of the officers’ subjective beliefs, it was not 20 deficient for appellate counsel to omit this claim on appeal. 21 Hylton has not established a basis for relief on this claim. 22 ii. Failure to Appeal Motion to Extend Briefing 23 Hylton’s next claim for relief asserts that appellate 24 counsel was ineffective for failing to raise the denial of the 25 motion to extend briefing. As set forth above, the motion had 26 asked the court to consider whether the officers’ testimony 27 about smelling marijuana was credible and the impact of the 28 seizure of the firearm from the vehicle without a warrant. 1 Hylton has not established a reasonable likelihood that 2 such a claim would have had success on appeal, particularly 3 given this court’s and the Ninth Circuit’s understanding that 4 the incursion into the backseat was justified to collect 5 Hylton’s documentation and not necessarily because the officers 6 claimed to have smelled marijuana. Further, as just noted, 7 appellate counsel should not necessarily file every nonfrivolous 8 claim on appeal. Smith, 528 U.S. at 288. Hylton has not shown 9 that this claim had such a strong likelihood of success on 10 appeal that counsel’s failure to raise it fell outside the wide 11 range of reasonable representation. He has not therefore 12 established deficient performance. 13 As to the warrantless seizure of the firearm, Hylton does 14 not provide any specific argument here, choosing instead to cite 15 his argument in support of his last claim for relief. (See ECF 16 No 440 at 66 & 82-88). However, the last claim for relief raises 17 a totally distinct issue that does not speak at all to the 18 warrantless seizure of the firearm. This part of Hylton’s claim 19 is therefore conclusory and unsupported. Moreover, even if it 20 has been adequately briefed, the claim at any rate lacks merit. 21 The court clearly and repeatedly held that seizure of the 22 firearm from Hylton’s vehicle was justified for officer safety. 23 Extending briefing on this issue would not have changed this 24 result, and because appellate counsel was aware of the court’s 25 finding in this regard, her choice not to include it among the 26 appellate issues was certainly within the wide range of 27 reasonably competent representation. Hylton is not entitled to 28 relief on this claim. 1 iv. Failure to Challenge Warrant for Hylton’s Home 2 Hylton’s next claim for relief asserts that his attorneys 3 were ineffective for failing to challenge the warrant to search 4 his home on Lots Hills. Specifically, he argues that the warrant 5 request was invalid because it was nearly identical to the 6 request for his girlfriend’s residence and did not establish a 7 nexus between the robberies and his home, because it improperly 8 narrowed the description of the robber to make it appear that he 9 more closely matched the description than he actually did, and 10 because it did not contain pictures of the two other black Ford 11 Escapes that were investigated to prove they did not have roof 12 racks like the suspect vehicle. Hylton can establish neither 13 deficient performance nor prejudice. 14 First, the fact that the warrant for Lots Hills repeated 15 language in the warrant for Rainbow Blvd. does not render the 16 warrant request invalid because largely the same facts that 17 supported probable cause for Hylton’s girlfriend’s house 18 supported probable cause for Hylton’s own home at Lots Hills. It 19 was a reasonable inference that Hylton had at least as much 20 access to his own home as he did his girlfriend’s home. It was 21 also a reasonable inference that evidence of the crimes might be 22 found at Hylton’s own home, which established the nexus that 23 Hylton argues was lacking. See United States v. Jackson, 756 24 F.2d 703, 705 (9th Cir. 1985) (“It was a reasonable inference 25 that Jackson might keep stolen currency in his apartment from a 26 bank robbery two months earlier.”). 27 Second, while it is true that the eyewitness statements 28 ranged from 5’10” to 6’5” and that the affidavit narrowed the 1 range (from both ends) to 6’0” to 6’4”, this minor narrowing did 2 not significantly alter the probable cause calculus. Despite 3 Hylton’s argument that the only thing tying him to the robberies 4 was that he fit a very general and broad description, there was 5 of course more to it than that. Hylton fit the height 6 description, was observed at the residence where a vehicle 7 matching the suspect vehicle was located, and was arrested 8 between the two robberies with a gun that matched the 9 description of the gun used in the first robbery. This last fact 10 was particularly compelling given that first and second robbers 11 were believed to be the same person and in the second incident 12 the robber used a different firearm. 13 Finally, as to the argument that the warrant lacked 14 photographic proof that the other two black Ford Escapes did not 15 have roof racks, Hylton cites no law requiring such 16 documentation to support a warrant request. Further, even if 17 documentary evidence were required, Hylton has not carried his 18 burden to establish that photographs of the other two vehicles 19 would have contradicted the officers’ sworn statements in the 20 affidavit. 21 In light of all this, Hylton has not also established 22 either that the court would have ordered a Franks hearing or 23 that, ultimately, the search warrant would have been voided for 24 lack of probable cause. See Franks v. Delaware, 438 U.S. 154, 25 156, 171-72 (1978). Thus, Hylton’s attorneys were not 26 ineffective for failing to raise what was a meritless claim. See 27 Sexton v. Cozner, 679 F.3d 1150, 1157 (9th Cir. 2012). Nor, for 28 1 the same reasons, did their failure cause Hylton prejudice. 2 Hylton is not entitled to relief on this claim. 3 v. Failure to Move to Suppress Based on Continued Seizure of Firearm 4 Hylton’s final claim for relief asserts that his attorney 5 was ineffective for failing to raise, in the initial motion to 6 suppress, that suppression of the firearm was warranted due to 7 its “continued warrantless seizure” after the running of the 8 stolen records check. (See ECF No. 440 at 83-84). He argues that 9 the running of the stolen records check was a violation of his 10 Fourth Amendment rights and converted the lawful seizure into an 11 unlawful one. (See id. at 84-85). 12 Hylton has cited no case law supporting his argument that a 13 stolen records check can convert a lawful seizure of a firearm 14 into an unlawful seizure requiring suppression. The case law he 15 cites supports suppression of evidence after a Fourth Amendment 16 violation occurred, not before. The closest he comes is the case 17 of United States v. Shipley, which he claims stands for the 18 proposition that “officer’s seizure of firearm initially lawful 19 for officer safety, but subsequently unlawful after seizing 20 officer runs stolen records check on the firearm.” (Id. at 85). 21 Shipley, however, did not actually make this finding. Rather, it 22 held only that the serial number should be suppressed, not the 23 lawfully seized firearms themselves. See United States v. 24 Shipley, 2017 WL 2350166, at *4 (D. Ariz. May 31, 2017), aff'd, 25 777 Fed. App’x 203 (9th Cir. 2019). Accordingly, as Hylton has 26 not shown this would have been a meritorious argument, counsel 27 was not deficient for failing to raise it, and his failure to do 28 1 so did not cause Hylton prejudice. Accordingly, Hylton is not 2 entitled to relief on his final claim. 3 IV. Request for Evidentiary Hearing 4 The court is not required to conduct a hearing on a § 2255 5 motion if “the motion and the files and records of the case 6 conclusively show that the prisoner is entitled to no relief.” 7 28 U.S.C. § 2255(b). Because the motion and files and records of 8 this case conclusively show that Hylton is not entitled to 9 relief, his request for an evidentiary hearing will be denied. 10 V. Certificate of Appealability 11 In order to proceed with an appeal, Hylton must receive a 12 certificate of appealability. 28 U.S.C. § 2253(c)(1); Fed. R. 13 App. P. 22; 9th Cir. R. 22-1; Allen v. Ornoski, 435 F.3d 946, 14 950-951 (9th Cir. 2006); see also United States v. Mikels, 236 15 F.3d 550, 551-52 (9th Cir. 2001). Generally, a defendant must 16 make “a substantial showing of the denial of a constitutional 17 right” to warrant a certificate of appealability. Allen, 435 18 F.3d at 951; 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 19 473, 483-84 (2000). “The petitioner must demonstrate that 20 reasonable jurists would find the district court’s assessment of 21 the constitutional claims debatable or wrong.” Allen, 435 F.3d 22 at 951 (quoting Slack, 529 U.S. at 484). In order to meet this 23 threshold inquiry, Hylton has the burden of demonstrating that 24 the issues are debatable among jurists of reason; that a court 25 could resolve the issues differently; or that the questions are 26 adequate to deserve encouragement to proceed further. Id. 27 The court has considered the issues raised by Hylton, with 28 respect to whether they satisfy the standard for issuance of a certificate of appealability, and determines that none meet that 2|| standard. Accordingly, Hylton will be denied a certificate of 3|| appealability. 4|| VI. Conclusion 5 In accordance with the foregoing, IT IS ORDERED that 6|| Hylton’s 28 U.S.C. § 2255 motion (ECF No. 440) is DENIED. 7 IT IS FURTHER ORDERED that Hylton is DENIED a certificate 8|| of appealability. 9 The Clerk of Court is directed to enter judgment 10|| accordingly. 11 IT IS SO ORDERED. 12 DATED: This 14th day of April, 2025. 13 burn S pt sf Mh 45 UNITED STATES DISTRICT JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 18