Opinion
CASE NO. 2:07-CV-792, CRIM. NO. 2:05-CR-192.
June 5, 2009
OPINION AND ORDER
On March 9, 2009, final judgment was entered dismissing the instant motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255. This matter is before the Court on petitioner's March 20, 2009, notice of appeal, which this Court construes as a request for a certificate of appealability. For the reasons that follow, petitioner's request for a certificate of appealability, Doc. No. 95, is DENIED.
In this federal habeas corpus petition, petitioner asserts:
1. The record shows that at the time of the plea, me nor my counsel [sic] nor the Court correctly understood the essential elements of the crime with which I was charged. Count 5 charges me with carry[ing] or brandishing a firearm during and in relation to a drug-trafficking crime, but the Rule 11 hearing only addressed the carry charge and not brandishing. The "Agreed Rule 11 Factual Basis" did not state I brandished a firearm during and [in] relation to a conspiracy to distribute and to possess with the intent to distribute cocaine base.
2. Ineffective counsel.
My lawyer fail[e]d to challenge my indictment. I told him that I am guilty of possession of a firearm and that's what I plan to plea to. He told me, erroneously, that there is no possession statute in federal court. I wanted to appeal but my attorney said there are no grounds to. Plus I have something going on right now.
3. Count 5 sets fo[]rth two separate and distinct crimes in a single count.
I am being charged with two separate crime[s] in a single count
4. The guidelines for crack cocaine ha[ve] been reduced by two levels by the U.S. Sentencing Commission.
Count 4 of my indictment is a crack cocaine offense and I fa[l]l into that cat[e]gory for the two level reduction.
On March 9, 2009, the Court dismissed all of petitioner's claims on the merits.
When a claim has been denied on the merits, a certificate of appealability may issue only if the petitioner "has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). This standard is a codification of Barefoot v. Estelle, 529 U.S. 473 (1983). Slack v. McDaniel, 529 U.S. 473, 483-84 (2000). To make a substantial showing of the denial of a constitutional right, a petitioner must show
that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were "`adequate to deserve encouragement to proceed further.'" Barefoot, 463 U.S., at 893, and n. 4. . . .Id.
Upon review of the record, the Court concludes that petitioner has failed to establish that reasonable jurists could debate whether the petition states a valid claim of the denial of a constitutional right. Therefore, petitioner's request for a certificate of appealability is DENIED.