Whether Petitioner is entitled to further consideration on his initial motion under 28 U.S.C. 2255 that his trial counsel was ineffective for failing to object to the Government's repeated Constructive Amendment when it instructed the jury to convict the Petitioner of a crime he was never charged with

QUESTION PRESENTED . Petitioner is serving a 360-month sentence for a charge of Conspiracy to © _ Distribute 1000 grams or more of heroin and same amount of cocaine, in viola_ tion of 21 U.S.C. 841 (a)(1), (b)(1)(A), 846, and 851. The jury was improperly instructed to convict Petitioner if they found him guilty of the lesser substantive-charge of Distribution of Drugs; a crime that he was never charged . with which does not encompass the laws and elements of 21 U.S.C. 846 conspiracy; directly violating his Fifth Amendment right that "Eno person shall be held to answer for a capital, or otherwise infamous crime, unless on present; ‘ment or indictment of a Grand Jury." U.S. Const. Amend. V. / . The district court determined, in response to Petitioner's initial motion . : “under 28 U.S.C. 2255, that the Government's instruction to the jury that "we are charging him with Distribution of Drugs, and that's what the law requires." . (TR 30) "Las well as other similar statements made to the jury... Davis was ; charged with Conspiracy to Distribute and the quoted-statement accurately ~ reflects the charge." (See Dist. Ct. Order p. 3-4)(Casé 4:17-cv-01035-GAF; Doc. | #9, filed 08/28/18 p.3 of 10). , : : Petitioner respectfully submits that it is reasonably debatable among: jurist of reason that the Jury Instructions given in this case make it clear that the "CeJlements of the crime of Distribution of a controlled substance are: (See Jury Instruction No. 18) (Case 4:12-cr-00063-GAF; Doc. #447 Filed 04/01/14, p. 29 of 55) a distinct and substantive crime that shares none of the same elements as 21 U.S.C. 846 "The crime of conspiracy to Distribute a con‘trolled substance..." as defined in Jury Instruction No. 16. (Id. Doc. #447, p. ~ 25 of 55). . . The Question Presented is: . an . Whether it is reasonably debatable among jurist of reason that Petitioner is entitled to further consideration on his initial motion under 28 U.S.C. 2255 ~ that his trial counsel was “ineffective for failing to object to the Government's repeated Constructive Amendment when it instructed the jury to ‘ convict the Petitioner of a crime he was never charged with and the District ; . Court's denial of the motion was based on. its erroneous determination that the . ' Government's assertion of the wrong charge as being "Distribution of Drugs'’ accurately reflected the correct charge of "Conspiracy to Distribute Drugs" when none of their elements are ‘the same.