Opinion
CIVIL ACTION NO. 06-12220-GAO.
July 25, 2007
ORDER
The petitioner, Carlos Rivera, now moves for a certificate of appealability from the denial of his § 2255 habeas petition. As grounds thereof, the petitioner argues that he has a colorable claim of constitutional error by virtue of trial counsel's ineffective assistance and that based on Oakes v. United States, 400 F.3d 92 (1st Cir. 2005), he should be afforded an opportunity to address the Court's finding of procedural default.
Although this Court raised the issue of procedural default sua sponte as in Oakes, in this case, unlike Oakes, the discussion regarding procedural default was simply presented as analternative ground. Prior to even raising procedural default, the Court found sufficient and adequate grounds to deny the petitioner's habeas claim on the basis that "the First Circuit clearly decided on direct appeal that the petitioner waived any challenge to the application of the ACC [Armed Career Criminal] guidelines, barring the petitioner from re-litigating this claim in the instant petition." Rivera v. United States, No. 06-12220, slip op. at 1 (D. Mass. Apr. 27, 2007). Thus, contrary to the situation in Oakes, where the First Circuit reasoned that the district court should have provided the petitioner with an opportunity to "respond before dismissing the petition" on procedural default grounds, the instant petition was dismissed on an entirely separate basis. Insofar as Oakes may require notice to a petitioner when a court denies a petition solely on the basis of procedural default, which it raised sua sponte, that principle is inapposite here as this Court did not deny the petitioner's claim on the basis of procedural default. Rather, the procedural default discussion was essentially obiter dictum. Furthermore, the petitioner did have prior notice of the ground upon which this Court relied in denying the petition and he explicitly addressed such argument in his petition. (Mem. of Law/Facts in Supp. of Mot. under 28 U.S.C. § 2255 at 12.)
The petitioner's purported ineffective assistance of counsel claim, only obliquely referenced to in his previous papers, was not denied on the ground of procedural default, but rather on the independent basis that the petitioner presented no "legal arguments or factual assertions beyond the conclusory statements asserting that his attorney at trial was `grossly ineffective' by conceding that the ACC applied. Beyond the fact that such allegations are insufficient to adequately present this claim, the court is not obliged to accept these few statements as true because `they state conclusions instead of facts.'" Rivera, slip op. at 3 (citations omitted).
As a final observation, although the prior Order disposed of the petition on procedural grounds without reaching the merits of any claim presented in the habeas petition, the Court now notes that the constitutional claim of ineffective assistance of counsel is wholly unmeritorious. The sole basis for petitioner's allegations of ineffective assistance is counsel's failure to object to the ACC application at sentencing. As the government points out in its opposition to the habeas petition, and the Pre-Sentence Report corroborates, the designation was appropriate given that three of the petitioner's prior state convictions were considered felonies under both Massachusetts and federal law, thereby falling outside the scope of Indelicato. Thus, it cannot be said that trial counsel was ineffective for failing to make an unavailable objection.
In conclusion, I find that reasonable jurists could not find that the ground identified by the petitioner was contrary to, or involved an unreasonable application of, Supreme Court precedent and therefore is an inappropriate ground for a certificate of appealability. Therefore, the motion for a certificate of appealability (dkt. no. 8) is DENIED.
It is SO ORDERED.