Opinion
CASE N0. 2:12-CV-261 CRIM. NO. 2:10-CR-225(3)
04-07-2014
AUGUSTIN GALVIN-GARCIA, JR. Petitioner, v. UNITED STATES OF AMERICA, Respondent.
JUDGE MARBLEY
MAGISTRATE JUDGE KING
ORDER
On February 10, 2014, the Court entered final judgment dismissing this action under 28 U.S.C. § 2255. Judgment, ECF 231. This matter is before the Court on Petitioner's February 14, 2014, Notice of Appeal and Request for a Certificate of Appealability, ECF 233. For the reasons that follow, the Court ISSUES a certificate of appealability as to certain claims.
In his original Motion to Vacate, ECF 138, and Amended Motion to Vacate, ECF 142, 145, Petitioner alleged that he had been denied the effective assistance of counsel because his attorney failed to file a notice of appeal after having been requested to do so, failed to explain the advantages and disadvantages of filing an appeal, failed to subject the prosecution's case to meaningful adversarial testing at sentencing, failed to file a motion to suppress, and failed to challenge the trial court's subject matter jurisdiction over Counts 1-9 of the Indictment. The Court dismissed all claims except Petitioner's claim that he had been denied the effective assistance of counsel because his attorney failed to file an appeal after have been requested to do so and failed to consult with Petitioner regarding the filing of an appeal. Order and Report and Recommendation, ECF 184; Order, ECF 190. Counsel was appointed to represent Petitioner at an evidentiary hearing on that claim. Order, ECF 191. Following the evidentiary hearing, the Court dismissed that remaining claim and this action. Report and Recommendation, ECF 219; Order, ECF 230.
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, 463 U.S. 880, 103 (1983). See Slack v. McDaniel, 529 U.S. 473, 484 (2000) (recognizing codification of Barefoot in 28 U.S.C. § 2253(c)(2)). 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.' " Id. 484 (quoting Barefoot, 463 U.S. at 893, n. 4). As it relates to the claim addressed at the evidentiary hearing, Petitioner's request for a certificate of appealability has met this standard.
The Court hereby CERTIFIES the following issue for appeal:
Was Petitioner denied the effective assistance of counsel under the test set forth in Strickland v. Washington, 466 U.S. 668 (1984), based on a failure to file an appeal after having been requested to do so and on a failure to consult with Petitioner about the filing of an appeal?
IT IS SO ORDERED.
_________________
ALGENON L. MARBLEY
United States District Judge