Opinion
Case No. 2:04-cv-194.
June 6, 2006
OPINION AND ORDER
On April 20, 2006, final judgment was entered dismissing the instant petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter is before the Court on petitioner's May 19, 2006, notice of appeal and request for a certificate of appealability. For the reasons that follow, petitioner's request for a certificate of appealability is DENIED.
In this federal habeas corpus petition, petitioner asserts:
1. Mr. Guzman's Fifth and Sixth Amendment rights were violated when he was sentenced based on speculation rather than on properly established facts.
A. Mr. Guzman's sentence cannot be supported by the record evidence.
B. Mr. Guzman's sentence based on unreliable facts violated his Fifth and Sixth Amendment rights as interpreted in Apprendi v. New Jersey, 530 U.S. 466 (2000).
C. Mr. Guzman's right to confront witnesses was violated.
2. Mr. Guzman's guilty plea was neither voluntary nor intelligent.
A. The guilty plea was neither voluntary nor intelligent because the plea colloquy failed to establish facts sufficient to convict Mr. Guzman.
B. The guilty plea was neither voluntary nor intelligent because the plea colloquy was not adequately translated for Mr. Guzman.
3. The state court's denial of Mr. Guzman's pre-sentence motion to withdraw guilty plea violated Mr. Guzman's right to jury trial and due process rights.
4. Sentencing Mr. Guzman to consecutive terms of on convictions of cocaine trafficking and attempted possession of cocaine based on a single transaction of the same cocaine violated the Double Jeopardy Clause.
5. The cell phone records should be suppressed as the fruit of unconstitutional search.
6. State trial counsel's assistance was ineffective.
These claims were raised through counsel on July 1, 2005. Doc. No. 20. Petitioner initially asserted solely that his guilty plea was not knowing, intelligent, or voluntary; that his convictions violated the Double Jeopardy Clause, and that he was denied the effective assistance of counsel because his attorney failed to object to his sentence as in violation of the Double Jeopardy Clause and Ohio's law on allied offenses of similar import.
On April 20, 2006, claims two and four were dismissed on the merits; the remainder of petitioner's claims were dismissed as procedurally defaulted.
Where the Court dismisses a claim on procedural grounds, a certificate of appealability
should issue when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.Slack v. McDaniel, 120 S.Ct. 1595 (2000). Thus, there are two components to determining whether a certificate of appealability should issue when a claim is dismissed on procedural grounds: "one directed at the underlying constitutional claims and one directed at the district court's procedural holding." The court may first "resolve the issue whose answer is more apparent from the record and arguments." Id.
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 (1983). Slack v. McDaniel, supra. 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 either that reasonable jurists could debate whether the Court was correct in its procedural rulings, or that any of his claims should have been resolved differently. Id.
Petitioner's request for a certificate of appealability therefore is DENIED.
IT IS SO ORDERED.