Opinion
CASE NO. 2:08-cv-472, CRIM. NO. 2:05-cr-111.
October 28, 2010
OPINION AND ORDER
On October 13, 2010, the Court entered final judgment dismissing the instant motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255. This matter now is before the Court on Petitioner's notice of appeal, which this Court construes as a request for a certificate of appealability. (Doc. 67.) For the reasons that follow, Petitioner's request is GRANTED.
The sole issue for consideration in this Court's order of October 13, 2010, involved petitioner's assertion that he was denied the effective assistance of counsel because his attorney advised him to proceed to trial rather than plead guilty, as he would face the same sentencing ramifications regardless of whether he pleaded guilty or proceeded to trial. In its order of October 13, 2010, however, the Court dismissed petitioner's claim on the merits. Doc. No. 66.
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). 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.'" Slack, 529 U.S. at 484 (quoting Barefoot, 463 U.S., at 893, n. 4).
The Court is persuaded that reasonable jurists could debate whether petitioner has demonstrated the denial of a constitutional right. Therefore, the Court GRANTS Petitioner's request for a certificate of appealability. The following issue is certified for appeal:
Was petitioner denied the constitutionally effective assistance of counsel with respect to his attorney's advice regarding whether to enter a guilty plea or proceed to trial?
IT IS SO ORDERED.
Date: October 28, 2010