Opinion
Case No. 02-3089-JAR, 99-40063-01-JAR
February 13, 2003.
ORDER
This matter is before the court on defendant's Application for Issuance of a Certificate of Appealability (Doc. 81). In its Memorandum and Order ("MO") (Doc. 79) dated January 7, 2003, the court denied defendant's motion pursuant to 28 U.S.C. § 2255. In the present application, defendant seeks authorization to appeal the court's denial of his § 2255 motion.
Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), defendant must obtain a Certificate of Appealability ("COA") before he can appeal "the final order in a proceeding under section 2255." Defendant is not entitled to a COA unless he can make "a substantial showing of the denial of a constitutional right."
In his § 2255 motion, defendant levied the following grounds for relief: (1) ineffective assistance of counsel during sentence in failing to argue that his sentence should have been calculated under § 2D1.11 instead of § 2D1.1; (2) ineffective assistance of counsel during sentencing in failing to object to the use of red phosphorus for the converted quantity of methamphetamine used to calculate his base offense level; and (3) ineffective assistance of counsel during sentencing in failing to advocate for the defendant.
The court denied relief as to all claims on substantive grounds, therefore, defendant may satisfy his burden only if "reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Defendant offers no additional argument, so the court is compelled to find defendant has failed to satisfy his burden for reasons set out in the MO. For these reasons, the court declines to issue the COA.
Slack v. McDaniel, 529 U.S. 473, 484 (2000) (construing 28 U.S.C. § 2253(c)).
IT IS THEREFORE BY THIS COURT ORDERED that defendant's Application for Issuance of a Certificate of Appealability (Doc. 81) is denied.