Opinion
Nos. EP-05-CA-0351-PRM, EP-04-CR-1169-PRM.
September 30, 2005
MEMORANDUM ORDER AND OPINION DISMISSING MOTION TO VACATE, SET ASIDE OR CORRECT SENTENCE PURSUANT TO 28 U.S.C. § 2255
Before the Court is Petitioner Irma Lorena Martinez-Guajardo's ("Martinez") Motion to Vacate, Set Aside or Correct Sentence ("Motion to Vacate") pursuant to 28 U.S.C. § 2255, filed on September 14, 2005. After review, the Court finds that Martinez is clearly not entitled to relief regarding her claims. Accordingly, it concludes that Martinez' Motion to Vacate should be denied and this matter summarily dismissed with prejudice pursuant to Rule 4(b) of the Rules Governing Section 2255 Proceedings. The Court will additionally deny Martinez a Certificate of Appealability.
I. BACKGROUND A. Criminal Cause no. EP-04-CR-1169-PRM
On June 2, 2004, the Grand Jury sitting in El Paso, Texas returned a four-count Indictment against Martinez and a co-defendant, charging them with conspiracy to import five kilograms or more of cocaine, a controlled substance, in violation of 21 U.S.C. §§ 952(a), 960(a)(1), 960(b)(1)(B), and 963 (Count One); importation of five kilograms or more of cocaine, in violation of 21 U.S.C. §§ 952(a), 960(a)(1), and 960(b)(1)(B) (Count Two); conspiracy to possess five kilograms or more of cocaine with the intent to distribute it, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(ii), and 846 (Count Three); and possession of this same quantity of cocaine with the intent to distribute it, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A)(ii) (Count Four). The District Clerk randomly assigned the case to this Court.
Martinez decided to forego trial, choosing instead to accept a plea agreement negotiated by her counsel. Pursuant to that agreement, Martinez consented to plead guilty to Count One of the Indictment in exchange for the Government's promise to not to oppose a two or three level reduction for acceptance of responsibility or a downward adjustment for "minor role" if the evidence supported such a finding. If, in the Government's discretion, it determined that Martinez met the requirements of U.S.S.G. §§ 5C1.2(a)(5) and 5C1.2(a)(2)-(4), then it additionally agreed not to oppose a two-level downward reduction under the safety valve provisions of U.S.S.G. §§ 2D1.1(b)(6) and 5C1.2(5).
Martinez accordingly appeared before United States Magistrate Judge Norbert J. Garney and pleaded guilty to Count One of the Indictment on August 24, 2004. Judge Garney entered a Report and Recommendation on the same day, recommending that the Court accept Martinez' guilty plea. The Court adopted Judge Garney's recommendation and accepted the plea on September 13, 2004. The Court entered Final Judgment on October 28, 2004, sentencing Martinez to a 46-month term of imprisonment and a 3-year term of non-reporting supervised release. The Court additionally ordered Martinez to pay a $100 special assessment. Martinez did not appeal.
B. Martinez' Motion to Vacate pursuant to 28 U.S.C. § 2255
The Court has liberally read Martinez' Motion to Vacate Pursuant to Haines v. Kerner, 404 U.S. 519, 596 (1972). It understands Martinez to argue that Mary Stillinger ("Stillinger"), the attorney who represented her at the plea and sentencing stages of cause no. EP-04-CR-1169-PRM, rendered ineffective assistance. Martinez specifically alleges that Stillinger "never helped [her] in the process of [her] case;" did not explain the consequences of signing the plea agreement, and did not look for mitigating factors which might have helped to reduce Martinez' sentence. The Court also understands Martinez to contend that her sentence violates the holding of Blakely v. Washington, ___ U.S. ___, 124 S.Ct. 2531 (2004) (" Blakely"), as extended to federal sentencing in United States v. Booker, No. 04-104, ___ U.S. ___, 125 S. Ct. 738 (Jan. 12, 2005) (" Booker").
II. MOTIONS TO VACATE, SET ASIDE OR CORRECT SENTENCE PURSUANT TO 28 U.S.C. § 2255
After a defendant has been convicted and exhausted or waived any right to appeal, a court is normally "entitled to presume that [he] stands fairly and finally convicted." Accordingly, "relief under 28 U.S.C. §§ 2255 is reserved for transgressions of constitutional rights and for a narrow range of injuries that could not have been raised on direct appeal and would, if condoned, result in a complete miscarriage of justice." A criminal defendant seeking relief from his conviction or sentence in a Motion to Vacate pursuant to 28 U.S.C. § 2255 must therefore establish one of the following: (1) his sentence was imposed in violation of the Constitution or laws of the United States; (2) the sentencing court lacked jurisdiction to impose the sentence; (3) the sentence imposed exceeded the maximum authorized by law; or (4) the sentence is otherwise subject to collateral attack.
United States v. Willis, 273 F.3d 592, 595 (5th Cir. 2001) (citing United States v. Frady, 456 U.S. 152, 164, 102 S. Ct. 1584, 1592 (1982); United States v. Shaid, 937 F.2d 228, 231-31 (5th Cir. 1991)).
United States v. Gaudet, 81 F.3d 585, 589 (5th Cir. 1996) (internal quotations and citations omitted).
See United States v. Seyfert, 67 F.3d 544, 546 (5th Cir. 1995) (citations omitted).
It is well settled that, absent countervailing equitable considerations, a district court will refuse to adjudicate claims that were previously raised and rejected on direct review. It is also well settled that a collateral challenge may not take the place of a direct appeal. If a movant challenging his conviction and sentence pursuant to 28 U.S.C. § 2255 could have raised his constitutional or jurisdictional issues on direct appeal, he may not raise them for the first time on collateral review unless he shows cause for his procedural default and actual prejudice resulting from the error or that the constitutional violation has probably resulted in the conviction of one who is actually innocent. To satisfy the "cause" standard, a movant must "show that some objective factor external to the defense prevented him from raising on direct appeal the claim he now advances." The procedural bar does not apply, however, to claims which could not have been raised on direct appeal, such as those alleging ineffective assistance of counsel.
See Withrow v. Williams, 507 U.S. 680 (1993).
See United States v. Shaid, 937 F.2d 228, 231 (5th Cir. 1991) (en banc) ("[A] collateral challenge may not do service for an appeal").
See id. at 232.
United States v. Guerra, 94 F.3d 989, 993 (5th Cir. 1996).
III. MARTINEZ' INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM A. Legal Standard — Ineffective Assistance of Counsel Claims
An ineffective assistance of counsel claim has two components. First, the petitioner must show that counsel performed deficiently. To establish deficient performance, a petitioner must demonstrate that counsel's representation "fell below an objective standard of reasonableness." The Supreme Court has "declined to articulate specific guidelines for appropriate attorney conduct and instead ha[s] emphasized that 'the proper measure of attorney performance remains simply reasonableness under prevailing professional norms.'"
Wiggins v. Smith, 539 U.S. 510, 521 (2003); Strickland v. Washington, 466 U.S. 668, 687 (1984).
Wiggins, 539 U.S. at 521.
Id.
Id.
To establish that counsel's representation fell below an objective standard of reasonableness, a petitioner must overcome a strong presumption that his trial counsel's conduct fell within a wide range of reasonable professional assistance. Reviewing courts are extremely deferential in scrutinizing counsel's performance, making every effort to eliminate the distorting effects of hindsight. It is strongly presumed that counsel rendered adequate assistance and exercised reasonable professional judgment in making all significant decisions. An attorney's strategic choices, usually based on information supplied by the defendant and from a thorough investigation of relevant facts and law, are virtually unchallengeable. Counsel is neither required to advance every non-frivolous argument, nor to investigate every conceivable matter, nor to assert patently frivolous arguments. Defense counsel is similarly not required to exercise clairvoyance during the course of a criminal trial.
See Darden v. Wainwright, 477 U.S. 168, 184 (1986); Strickland, 466 U.S. at 687-91; Lackey v. Johnson, 116 F.3d 149, 152 (5th Cir. 1997); Belyeu v. Scott, 67 F.3d 535, 538 (5th Cir. 1995).
See, e.g., Lockhart v. Fretwell, 506 U.S. 364, 372 (1993); Burger v. Kemp, 483 U.S. 776, 789 (1987); Strickland, 466 U.S. at 689; Green v. Johnson, 116 F.3d 1115, 1122 (5th Cir. 1997).
See Strickland, 466 U.S. at 690; Drew v. Collins, 964 F.2d 411, 422 (5th Cir. 1992); Duff-Smith v. Collins, 973 F.2d 1175, 1182 (5th Cir. 1992).
See Boyle v. Johnson, 93 F.3d 180, 187-88 (5th Cir. 1996) (holding that an attorney's decision not to pursue a mental health defense or to present mitigating evidence concerning the defendant's possible mental illness was reasonable where counsel was concerned that such testimony would not be viewed as mitigating by the jury and that the prosecution might respond to such testimony by putting on its own psychiatric testimony regarding the defendant's violent tendencies); West v. Johnson, 92 F.3d 1385, 1406-09 (5th Cir. 1996) (holding that a trial counsel's failure to conduct further investigation into the defendant's head injury and psychological problems was reasonable where interviews with the defend ant and the defendant's family failed to produce any helpful information); cf. Wiggins, 539 U.S. at 524 (holding that, in a capital case, counsel's decision not to expand its mitigation-defense investigation beyond presentence investigation report and Department of Social Services records, despite suggestions that additional, significant mitigating evidence existed, was itself unreasonable and fell below professional standards).
See Sones v. Hargett, 61 F.3d 410, 415 n. 5 (5th Cir. 1995) (stating that counsel cannot be deficient for failing to press a frivolous point); United States v. Gibson, 55 F.3d 173, 179 (5th Cir. 1995) (stating that the Sixth Amendment does not require counsel to file meritless motions); Smith v. Collins, 977 F.2d 951, 960 (5th Cir. 1992) (noting that the defense of a criminal case is not an undertaking in which everything not prohibited is required, nor does it contemplate the employment of wholly unlimited time and resources).
See Sharp v. Johnson, 107 F.3d 282, 290 n. 28 (5th Cir. 1997) (citing Garland v. Maggio, 717 F.2d 199, 207 (5th Cir. 1983) (holding that clairvoyance is not a required attribute of effective representation)).
Even if counsel's performance falls below an objective standard of reasonableness, "[a]n error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment." Accordingly, "any deficiencies in counsel's performance must be prejudicial to the defense in order to constitute ineffective assistance under the Constitution."
Strickland, 466 U.S. at 691-92.
Id. at 692.
Because a convicted defendant must satisfy both prongs of the Strickland test, his failure to establish either deficient performance or prejudice under that test makes it unnecessary to examine the other prong. Therefore, a convicted defendant's failure to establish that his counsel's performance fell below an objective standard of reasonableness avoids the need to consider the issue of prejudice. Similarly, it is also unnecessary to consider whether counsel's performance was deficient where there is an insufficient showing of prejudice. Moreover, mere conclusory allegations in support of claims of ineffective assistance of counsel are insufficient, as a matter of law, to raise a constitutional issue.
Strickland, 466 U.S. at 700; Green, 116 F.3d at 1122; see also Burnett v. Collins, 982 F.2d at 928 (holding that the defendant bears the burden of proof on both prongs of the Strickland test).
Hoskins, 910 F.2d at 311; Thomas, 812 F.2d at 229-30.
See Black, 962 F.2d at 401; Pierce, 959 F.2d at 1302.
See Kinnamon v. Scott, 40 F.3d 731, 735 (5th Cir. 1994) (holding that a petitioner's speculative complaints of ineffective assistance by appellate counsel did not warrant federal habeas relief).
With these principles in mind, the Court turns to the merits of Martinez' claim for relief.
B. Discussion
As set forth above, to prevail on her ineffective assistance claim, Martinez must show both that Stillinger performed deficiently and that the deficient performance directly prejudiced her defense. The Court finds that she has failed to carry her burden.
To the extent Martinez alleges that Stillinger did not help her during the case, her claim is nebulous, conclusory, and belied by the record in this cause. First, Martinez fails to set forth with any particularity whatsoever how Stillinger failed to assist her or how Stillinger's purported omissions prejudiced her. Second, the record shows that, in fact, Stillinger significantly assisted her client by negotiating a quite favorable plea agreement on her behalf. Inasmuch as Martinez complains that Stillinger did not look for mitigating factors to reduce her client's sentence, she fails to identify any mitigating factors that Stillinger could have raised and how her failure to bring them to the Court's attention prejudiced her client. Martinez cannot escape her burden of demonstrating deficient performance and prejudice by merely stating her conclusion.
United States v. Holmes, No. 03-41738, ___ F.3d ___, ___, 2005 WL 768942, *15, 2005 U.S. App. LEXIS 5606, *53-4 (5th Cir. Apr. 6, 2005) (explaining that a petitioner who accuses his counsel of ineffectiveness can not escape his burden of demonstrating both cause and prejudice by merely stating his conclusion); see Green v. Johnson, 160 F.3d 1029, 1042 (5th Cir. 1998) (stating that mere conclusory allegations in support of a claim of ineffective assistance of counsel are insufficient to raise a constitutional issue).
To the extent Martinez contends that her plea was involuntary and unintelligent because Stillinger did not explain the terms of the plea agreement to her, her claim is flatly contradicted by her statements during the plea hearing that she understood the terms of the agreement and the rights she was waiving by signing it. Martinez' statements at the plea colloquy are entitled to great weight. The Court finds that Martinez has failed to show that her present self-serving statements are entitled to greater deference that her sworn statement to the contrary at the plea hearing. For the reasons discussed above, the Court concludes that Martinez' ineffective-assistance claim should be dismissed with prejudice.
See Blackledge v. Allison, 431 U.S. 63, 73 (1977) (stating that solemn declarations in open court carry a strong presumption of veracity); see also United States v. Cothron, 302 F.3d 279, 283-84 (5th Cir. 2002); United States v. Martinez-Molina, 64 F.3d 719 (1st Cir. 1995) (crediting district court's determination, made during the plea colloquy, that the defendant had not been pressured, rather than the defendant's later self-serving statements); United States v. Abreo 30 F. 3d 29, 31 (5th Cir. 1994) (placing great weight on defendant's statements during plea colloquy).
IV. BOOKER'S NON-RETROACTIVITY
Although the Fifth Circuit Court of Appeals has yet to determine whether Booker applies retroactively to convictions that were already final when the rule was announced, the other circuit courts of appeal to consider the matter have uniformly held that Booker announced a new procedural rule which does not apply retroactively to initial habeas petitions pursuant to 28 U.S.C. § 2255. For the reasons discussed below, this Court agrees with the reasoning set forth by the Second, Sixth, Seventh, Tenth, and Eleventh Circuit Courts of Appeals and accordingly determines that Martinez is clearly not entitled to relief on her claim.
See Guzman v. United States, 404 F.3d 139, 140 (2d. Cir. Apr. 8, 2005) (holding that Booker is not retroactive and therefore does not apply to judgments that were final before Jan. 12, 2005); United States v. Price, 400 F.3d 844, 845 (10th Cir. 2005) (holding that Booker does not apply to initial habeas corpus petitions brought pursuant to 28 U.S.C. § 2255); Humphress v. United States, 398 F.3d 855, 856 (6th Cir. Feb. 25, 2005) (holding that Booker does not apply retroactively to cases already final on direct review); Varela v. United States, 400 F.3d 864, 868 (11th Cir. Feb. 17, 2005) (" Booker's constitutional rule falls squarely under the category of new rules of criminal procedure that do not apply retroactively to § 2255 cases on collateral review."); McReynolds v. United States, 397 F.3d 479, 481 (7th Cir. Feb. 2, 2005).
A. Booker's holding
In Booker, the Supreme Court considered whether the Apprendi line of cases applied to the United States Sentencing Guidelines, and if so, what portions, if any, of the Sentencing Guidelines remained in effect. Booker reaffirmed the Supreme Court's earlier holding in Apprendi: "Any fact (other than that of a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt." Applying the principle that "the Sixth Amendment requires juries, not judges, to find facts relevant to sentencing," Booker excised the provision of the federal sentencing statute making it mandatory for district courts to apply the Sentencing Guidelines. While the district court must consider the Sentencing Guidelines, it may also tailor a defendant's sentence in light of the statutory concerns set forth in 18 U.S.C. § 3553(a) without running afoul of the Sixth Amendment. B. Retroactivity of new rules announced by the Supreme Court of the United States
See United States v. Booker, ___ U.S. ___, ___, 125 S. Ct. 738, 747 n. 1 (2005) (stating the questions presented for review); see also Apprendi v. New Jersey, 530 U.S. 466 (2000).
Booker, ___ U.S. at ___, 125 S. Ct. at 748.
See Booker, ___ U.S. at ___, 125 S.Ct. at 748; see also 18 U.S .C. § 3553(b)(1).
See Booker, ___ U.S. at ___, 125 S.Ct. at 757; see also 18 U.S.C. § 3553(a).
When a Supreme Court decision results in a new rule, that rule applies to all criminal cases still pending on direct review. The new rule applies in only limited circumstances, however, to convictions that are already final. New substantive rules generally apply retroactively to convictions that are already final. New substantive rules result from decisions narrowing the scope of a criminal statute by limiting its terms, or from constitutional determinations that place particular conduct or persons covered by the statute beyond the State's power to punish. "Such rules apply retroactively because they necessarily carry a significant risk that a defendant stands convicted of an act that the law does not make criminal or faces a punishment that the law cannot impose upon him."
Schriro v. Summerlin, 542 U.S. 348, ___, 124 S.Ct. 2519, 2522 (2004); Griffith v. Kentucky, 479 U.S. 314, 328 (1987).
Schriro, 542 U.S. at ___, 124 S. Ct. at 2522.
Id. at ___, 124 S. Ct. at 2522.
Id. at ___, 124 S. Ct. at 2522.
Id. at ___, 124 S. Ct. at 2522-23 (internal quotations omitted).
In contrast, new procedural rules generally do not apply retroactively, because "[t]hey do not produce a class of persons convicted of conduct the law does not make criminal, but merely raise the possibility that someone convicted with use of the invalidated procedure might have been acquitted otherwise." Due to the more speculative connection between the invalidated procedure and innocence, only "a small set of watershed rules of criminal procedure" ( i.e., those implicating the fundamental fairness and accuracy of the criminal proceeding) are given retroactive effect. It is not enough that a new procedural rule is "fundamental in some abstract sense." Rather, the new rule must be one "without which the likelihood of an accurate conviction is seriously diminished." This class of rules is extremely narrow. C. Booker represents a new procedural rule that is not retroactive to cases on collateral review.
Schriro, 542 U.S. at ___, 124 S. Ct. at 2523.
Id. at ___; 124 S. Ct. at 2523.
Id. at ___; 124 S. Ct. at 2523 (internal quotation omitted).
Id. at ___; 124 S. Ct. at 2523.
Id. at ___; 124 S. Ct. at 2523.
Rules that regulate only the manner of determining a defendant's culpability are procedural. Judged by this standard, Booker's holding, which rests entirely on the Sixth Amendment's jury trial guarantee, is properly classified as procedural. The rule announced in Booker merely alters the range of permissible methods for determining whether a defendant's conduct is punishable, requiring a jury rather than a judge to find the essential facts bearing on punishment. "Rules that allocate decisionmaking authority in this fashion are prototypical procedural rules" and do not apply retroactively to convictions that are already final. Although "the right to jury trial is fundamental to our system of criminal procedure . . . it does not follow that, when a criminal defendant has had a full trial and one round of appeals in which the [Government] faithfully applied the Constitution as we understood it at that time, he may nevertheless continue to litigate his claims indefinitely in hopes that we will one day have a change of heart."
Schriro, 542 U.S. at ___, 124 S.Ct. at 2523; Bousley v. United States, 523 U.S. 614, 620 (1998).
See Schriro, 542 U.S. at ___, 124 S. Ct. at 2523.
Id. at ___, 124 S. Ct. at 2523.
Schriro, 542 U.S. at ___, 124 S. Ct. at 2523; see Humphress v. United States, 398 F.3d 855, 856 (6th Cir. Feb. 25, 2005) (holding that Booker does not apply retroactively to cases already final on direct review); Varela v. United States, 400 F.3d 864, 868 (11th Cir. Feb. 17, 2005) (" Booker's constitutional rule falls squarely under the category of new rules of criminal procedure that do not apply retroactively to § 2255 cases on collateral review."); McReynolds v. United States, 397 F.3d 479, 481 (7th Cir. Feb. 2, 2005) ("We conclude . . . that Booker does not apply retroactively to criminal cases that became final before its release on Jan. 12, 2005.").
Schriro, 542 U.S. at ___, 124 S.Ct. at 2526.
In sum, this Court, in keeping with every circuit court of appeals to decide the issue, concludes that Booker does not apply retroactively to cases on collateral review. The Court additionally finds that January 12, 2005, the date on which the Supreme Court decided Booker, rather than June 24, 2004, the date on which it decided Blakely, is the appropriate dividing line for determining whether a judgment may be attacked pursuant to the new rule. That is, judgments that became final before January 12, 2005 may not claim relief pursuant to Booker.
See Humphress, 398 F.3d at 856; Varela, 400 F.3d at 868; McReynolds, 397 F.3d at 481.
In the words of Judge Easterbrook, " Blakely reserved decision about the status of the federal Sentencing Guidelines, so Booker itself represents the establishment of a new rule about the federal system." McReynolds, 397 F.3d at 481.
Here, because she did not appeal, Martinez' judgment became final on November 7, 2004, ten days after entry and approximately two months before Booker's release. Since Booker therefore provides Martinez with no legal basis for relief, the Court concludes that it should dismiss her claim with prejudice. V. CERTIFICATE OF APPEALABILITY
The Court notes that even if Booker applied retroactively to her § 2255 motion, Martinez would still not be entitled to relief. As part of her plea agreement, Martinez agreed to waive any rights she might have to contest her sentence, except on the basis that: (1) the Court departed upward from the guideline range pursuant to U.S.S.G. § 5K2.0; or (2) her sentence resulted from a violation of her constitutional rights arising from in effective assistance of counsel or prosecutorial misconduct.
The Court has found that Martinez is not entitled to relief on her claims that she involuntarily entered her guilty plea due to her counsel's ineffective assistance. That being the case, the Court also finds that her waiver of appellate rights is fully enforceable. See United States v. Robinson, 187 F.3d 516, 517 (1999) (explaining that a defendant's waiver of his right to appeal is enforceable as long as the plea itself is informed and voluntary). Martinez may therefore only appeal her sentence on the grounds that it directly resulted from in effective assistance of counsel or prosecutorial misconduct. Her Booker claim implicates neither exception to her waiver of the right to appeal.
Martinez' Booker claim would also likely fail on the merits. At the plea hearing, the Government offered a factual basis in support of Martinez' guilty plea. Martinez admitted that allegations therein were true, including the Government's assertion that she conspired to import 52.9 pounds of cocaine into the United States from Mexico. Martinez has not shown that the Court sentenced her above the statutory maximum sentence authorized by her admission regarding the quantity of cocaine involved in the offense. See Booker, ___ U.S. at ___, 125 S. Ct. at 749 (stating that the statutory maximum for Apprendi purposes is the maximum sentence a judge may impose based solely on the basis of facts reflected in the jury verdict or admitted by the defendant).
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") converted the "certificate of probable cause" ("CPC") required to appeal from the denial of a petition for federal habeas corpus relief, including the denial of § 2255 Motions to Vacate, into a Certificate of Appealability ("CoA"). To appeal the denial of a habeas corpus petition filed under 28 U.S.C. § 2255, the petitioner must obtain a CoA. Appellate review of a habeas petition is moreover limited to the issues on which a CoA is granted. In other words, a CoA is granted or denied on an issue-by-issue basis, thereby limiting appellate review to solely those issues on which CoA is granted.
See Hill v. Johnson, 114 F.3d 78, 80 (5th Cir. 1997) (recognizing that the "substantial showing" requirement for a CoA under the AEDPA is merely a change in nomenclature from the certificate of probable cause standard); Muniz v. Johnson, 114 F.3d 43, 45 (5th Cir. 1997) (holding that the standard for obtaining a CoA is the same as for a CPC); see also Robison v. Johnson, 151 F.3d 256, 259 n. 2 (5th Cir. 1998), cert. denied, 526 U.S. 1100 (1999) (stating that the CoA requirement supersedes the previous requirement for a certificate of probable cause to appeal for federal habeas corpus petitions filed after the effective date of the AEDPA); Hallmark v. Johnson, 118 F.3d 1073, 1076 (5th Cir. 1997), cert. denied sub nom. Monroe v. Johnson, 523 U.S. 1041 (1998) (same).
See Miller-El v. Johnson, 537 U.S. 322, 335-6, 123 S. Ct. 1029, 1039, 154 L. Ed. 2d 931, 949 (2003); 28 U.S.C.A. § 2253(c)(2) (West 2004).
See Crutcher v. Cockrell, 301 F.3d 656, 658 n. 10 (5th Cir. 2002), (holding that a CoA is granted on an issue-by-issue basis, thereby limiting appellate review to those issues); Jones v. Cain, 227 F.3d 228, 230 n. 2 (5th Cir. 2000) (holding the same); Lackey v. Johnson, 116 F.3d 149, 151 (5th Cir. 1997) (holding that the scope of appellate review of denial of habeas petition is limited to issue on which CoA granted).
See Crutcher v. Cockrell, 301 F.3d at 658 n. 10; Lackey v. Johnson, 116 F.3d at 151; Hill v. Johnson, 114 F.3d at 80; Muniz v. Johnson, 114 F.3d at 45; Murphy v. Johnson, 110 F.3d 10, 11 n. 1 (5th Cir. 1997); 28 U.S.C.A. § 2253(c)(3) (West Supp. 2003).
A CoA to appeal the denial of a habeas corpus petition shall be granted only upon "a substantial showing of the denial of a constitutional right." The showing necessary to obtain a CoA on a particular claim depends upon the manner in which the District Court has disposed of a claim. If this Court rejects a prisoner's constitutional claim on the merits, he must then demonstrate that reasonable jurists could find the Court's assessment of the constitutional claim to be debatable or wrong. If the petitioner wishes to challenge this Court's dismissal of a claim for a reason not of constitutional dimension, such as procedural default, limitations, or lack of exhaustion, he must show that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and whether this Court was correct in its procedural ruling. This Court is authorized to address the propriety of granting a CoA sua sponte.
28 U.S.C. § 2253(c)(2); Miller-El v. Cockrell, 537 U.S. 322, 327 (2003).
Miller-El v. Johnson, 537 U.S. at 338, 123 S. Ct. at 1040.
Slack v. McDaniel, 529 U.S. at 484, 120 S. Ct. at 1604 (holding that when a district court denies a habeas claim on procedural grounds, without reaching the underlying constitutional claim, a CoA may issue only when the petitioner shows that reasonable jurists would find it debatable whether: (1) the claim is a valid assertion of the denial of a constitutional right; and (2) the district court's procedural ruling was correct).
Alexander v. Johnson, 211 F.3d 895, 898 (5th Cir. 2000).
After considering the entire record and Martinez' pleadings, the Court concludes that jurists of reason would not debate whether she has stated a valid claim for relief or whether a procedural ruling in this case is correct. Accordingly, the Court declines to issue a Certificate of Appealability regarding her claims. VI. CONCLUSION ORDER
In sum, the Court concludes that Petitioner Irma Lorena Martinez-Guajardo's Motion to Vacate, Set Aside, or Correct Sentence filed pursuant to 28 U.S.C. § 2255 should be denied and this matter dismissed with prejudice. The Court further finds that Petitioner is not entitled to a Certificate of Appealability. The Court accordingly enters the following orders:
1. Petitioner Irma Lorena Martinez-Guajardo's Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255, filed on September 14, 2005, is DENIED and this matter is DISMISSED WITH PREJUDICE.
2. Petitioner Irma Lorena Martinez-Guajardo is DENIED a Certificate of Appealability.
3. All pending motions in this cause, if any, are DENIED AS MOOT. SO ORDERED.
FINAL JUDGMENT
On this day, the Court entered an Order dismissing, with prejudice, Petitioner Irma Lorena Martinez-Guajardo's Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255, filed on September 14, 2005. The Court further denied Petitioner a Certificate of Appealability regarding her claims. The Court now enters its Final Judgment pursuant to Rule 58 of the Federal Rules of Civil Procedure.Accordingly, IT IS ORDERED that Petitioner Irma Lorena Martinez-Guajardo's Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255 is DENIED AND THIS ACTION IS DISMISSED WITH PREJUDICE. IT IS FURTHER ORDERED that all other pending motions, if any, are DENIED AS MOOT.
The Clerk shall close this case.