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U.S. v. Valencia-Lopez

United States District Court, E.D. California
Feb 23, 2006
No. CR-F-96-5113 OWW (E.D. Cal. Feb. 23, 2006)

Opinion

No. CR-F-96-5113 OWW.

February 23, 2006


ORDER DECLINING TO ISSUE CERTIFICATE OF APPEALABILITY


Movant filed a "Notice of Plain Error and Motion to Review Under Whichever Rule or Statute Court Deems Proper or Pursuant to 18 U.S.C. § 3742(a)(1)(2)(3)", which motion was denied by Order filed on February 6, 2006 (hereafter referred to as the February 6 Order).

On February 21, 2006, movant filed a "Notice of Intent to Appeal and Motion for Certificate of Appealability".

To the extent that movant requested that his motion be deemed a motion for relief pursuant to 28 U.S.C. § 2255, movant contended that his conviction and sentence are unconstitutional because of the Supreme Court's decisions in United States v. Booker, 543 U.S. 200 (2005), Blakely v. Washington, 542 U.S. 296 (2004), and Apprendi v. New Jersey, 530 U.S. 466 (2004). Movant's request was denied because the Ninth Circuit has ruled that none of the Supreme Court's decisions are retroactively applicable on collateral review.

"When the district court denies a habeas petition on procedural grounds without reaching the prisoner's underlying constitutional claim, a COA should issue when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling." Slack v. McDaniel, 529 U.S. 473, 484 (2000).

Under this standard, movant's request for a Certificate of Appealability is denied. Because the Supreme Court decisions upon which movant based his claim for relief are not retroactively applied on collateral review, movant has not demonstrated that "jurists of reason would find it debatable whether the district court was correct in its ruling."


Summaries of

U.S. v. Valencia-Lopez

United States District Court, E.D. California
Feb 23, 2006
No. CR-F-96-5113 OWW (E.D. Cal. Feb. 23, 2006)
Case details for

U.S. v. Valencia-Lopez

Case Details

Full title:UNITED STATES OF AMERICA, Plaintiff/Respondent, v. JORGE VALENCIA-LOPEZ…

Court:United States District Court, E.D. California

Date published: Feb 23, 2006

Citations

No. CR-F-96-5113 OWW (E.D. Cal. Feb. 23, 2006)