Opinion
Case No. 2:09-CR-00502-KJD-PAL Case No. 2:13-cv-00603-KJD-PAL
12-16-2013
UNITED STATES OF AMERICA, Plaintiff, v. DENNIS JAMES GRAVES, Defendant.
ORDER
Presently before the Court is the Order of the Ninth Circuit Court of Appeals directing the Court to grant or deny a certificate of appealability and stating the grounds for doing so. In order to proceed with an appeal, petitioner must receive a certificate of appealability. 28 U.S.C. § 2253(c)(1); Fed. R. App. P. 22; 9th Cir. R. 22-1; Allen v. Ornoski, 435 F.3d 946, 950-951 (9th Cir. 2006); see also United States v.Mikels, 236 F.3d 550, 551-52 (9th Cir. 2001). Generally, a petitioner must make "a substantial showing of the denial of a constitutional right" to warrant a certificate of appealability. Id.; 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 483-84 (2000). "The petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Id. (quoting Slack, 529 U.S. at 484). In order to meet this threshold inquiry, the petitioner has the burden of demonstrating that the issues are debatable among jurists of reason; that a court could resolve the issues differently; or that the questions are adequate to deserve encouragement to proceed further. Id.
In this action, Appellant raised claims that his trial counsel was ineffective for failing to investigate and raise certain claims at trial, failing to file a motion to suppress his confession, and failing to object to certain evidence at trial. However, Appellant is unable to make a substantial showing of a denial of a constitutional right, because the undisputed record shows that this Court's assessment of the claims is clearly not debatable or wrong. Primarily, Appellant's claims were denied because he was factually wrong about the record before the Court. The trial transcript clearly showed that his counsel had investigated factual issues and raised those claims at trial through examination or cross-examination of witnesses. Further, counsel's failure to file a motion to suppress or object to evidence at trial did not constitute ineffective assistance of counsel, because doing so would have been futile. In addition to being clearly legally wrong about the evidentiary issues, the trial transcript shows that Appellant was factually wrong about many of the assertions in his motion. Therefore, the Court must decline to issue a certificate of appealability, because Appellant cannot make a substantial showing that he was denied a constitutional right.
IT IS SO ORDERED.
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Kent J. Dawson
United States District Judge