Opinion
Case No. 2:11-CR-00102-APG-CWH
05-16-2017
UNITED STATES OF AMERICA, Plaintiff, v. MITCHELL PULIDO, Defendant.
ORDER GRANTING CERTIFICATE OF APPEALABILITY
I denied defendant Mitchell Pulido's motion to correct his sentence under 28 U.S.C. § 2255. ECF No. 77. To appeal that order, Pulido must receive a certificate of appealability. To obtain that certificate, Pulido "must make a substantial showing of the denial of a constitutional right, a demonstration that . . . includes showing 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." This standard is "lenient."
28 U.S.C. § 2253(c)(1)(B); Fed. R. App. P. 22(b)(1); 9th Cir. R. 22-1(a).
Slack v. McDaniel, 529 U.S. 473, 483-84 (2000) (quotation omitted).
Hayward v. Marshall, 603 F.3d 546, 553 (9th Cir. 2010) (en banc).
When applying the "hopeless tangle" "of inconsistent case law" that makes up the categorical test, reasonable jurists often disagree. Although I follow the Ninth Circuit's lead in holding that Pulido's convictions qualify as crimes of violence, other courts have held otherwise. I thus grant Pulido's request for a certificate of appealability. / / / / / / / / / / / /
United States v. Ladwig, 192 F. Supp. 3d 1153 (E.D. Wash. 2016) (noting that this test "has stymied law clerks and judges alike in a morass of inconsistent case law").
IT IS THEREFORE ORDERED that the defendant is granted a certificate of appealability.
DATED this 16th day of May.
/s/_________
ANDREW P. GORDON
UNITED STATES DISTRICT JUDGE