Opinion
EP-05-CA-070-PRM, EP-02-CR-341-PRM.
April 26, 2006.
MEMORANDUM OPINION ORDER
Before the Court is Petitioner Eduardo Paul Meza-Bedoya's ("Meza") "Motion to Vacate, Set Aside, or Correct Sentence" ("Motion to Vacate") [Docket No. 77], filed through counsel in the above-captioned cause on April 25, 2005. Therein, pursuant to 28 U.S.C. § 2255, Meza moves the Court for relief from the judgment and sentence imposed in criminal cause no. EP-02-CR-341-PRM. After carefully considering the Parties' pleadings, the record of the proceedings in cause no. EP-02-CR-341-PRM, and the testimony elicited at an evidentiary hearing held on September 29, 2006, the Court concludes that Meza has not shown that he is entitled to relief regarding his claims. The Court will accordingly deny Meza's Motion to Vacate and dismiss this matter with prejudice. However, because reasonable jurists could disagree with the Court's conclusion that Meza has not established an ineffective assistance claim against attorneys Albert Perez, Jr., and Eric Chase for failing to pursue a substantial cooperation reduction, the Court will grant Meza a Certificate of Appealability as to Ground One of his Motion to Vacate. The Court will decline to certify Meza's remaining issues for appeal. I. BACKGROUND A. Criminal Cause EP-02-CR-341-PRM
On February 20, 2002, the federal Grand Jury sitting in El Paso, Texas returned a sealed, one-count Indictment against Meza and a co-defendant, charging them with conspiracy to possess 1,000 kilograms or more of marijuana, a controlled substance, in violation of 21 U.S.C. §§ 846, 841(a), and 841(b)(1)(A)(vii). Meza was arrested in the Central District of California on March 6, 2002, pursuant to a bench warrant. The same day, the Court unsealed the Indictment as to Meza.
On June 14, 2002, California attorney Albert Perez, Jr. ("Perez") filed a motion requesting permission to appear for Meza pro hac vice. The Court granted Perez's request in an Order dated June 17, 2002. Accompanied by Perez, Meza appeared before the Court on November 18, 2002 and pleaded guilty to the Indictment. The Court accepted Meza's plea, finding that it was knowing and voluntary, and deferred sentencing until March 14, 2003 to allow for the preparation of a Presentence Investigation Report ("PSR").
On March 11, 2003, two days before Meza's scheduled sentencing, El Paso attorney Joseph D. Vasquez ("Vasquez") filed two motions on Meza's behalf. In the first motion, Vasquez asked the Court to allow California attorney Alan Baum ("Baum"), who was then affiliated with the Chase Law Firm, to substitute in place of Perez as Meza's counsel of record. Vasquez sought leave to serve as Meza's local counsel. In the second motion, Vasquez asked the Court to continue Meza's sentencing hearing for an unspecified period of time, explaining that Vasquez had a scheduling conflict which made him unable to attend the sentencing. Vasquez also stated that he had not had adequate time to prepare for Meza's sentencing, because Meza had only recently retained Vasquez's services. In separate Orders, each dated March 12, 2003, the Court granted both motions, allowing Baum and Vasquez to substitute as Meza's counsel and continuing Meza's sentencing until March 18, 2003.
On March 17, 2003, Vasquez filed motions requesting the Court to permit Meza to withdraw his guilty plea and asking it to continue sentencing for a second time. At Meza's sentencing hearing on March 18, 2003, the Court denied the motion to withdraw the guilty plea and the motion for an additional continuance. After a recess to allow Vasquez to review the PSR with his client, the sentencing hearing proceeded. The Court entered its Final Judgment on March 31, 2003, sentencing Meza to a 262-month term of imprisonment and a 5-year term of supervised release. The Court also ordered Meza to pay a $100 special assessment.
The Court memorialized its actions in written orders issued the following day.
B. Meza's Direct Appeal
Meza challenged his judgment and sentence in a direct appeal, raising the following claims for relief. First, Meza argued that Perez was ineffective because he misadvised Meza regarding the maximum sentence Meza could receive. Second, Meza alleged that Vasquez was ineffective at sentencing because Vasquez was unprepared. Third, Meza asserted that the Court erred in denying his motion to withdraw the guilty plea. Fourth, Meza attacked the Court's decision to deny Vasquez's second motion to continue the sentencing hearing. Fifth, Meza claimed that the Court erred in basing its sentence on the original base offense level of 38, when the Government allegedly agreed that the base offense level should be level 36. Lastly, Meza averred that the Court erred by imposing a four-level enhancement for Meza's role as an organizer or leader of the conspiracy. In an Opinion filed on December 5, 2003, the Fifth Circuit Court of Appeals affirmed Meza's conviction and sentence, finding that the record was not sufficiently developed to allow adjudication of Meza's ineffective assistance claim against Vasquez and concluding that his remaining claims were without merit. Meza did not seek certiorari review by the Supreme Court of the United States.
C. Meza's Motion to Vacate
Meza originally raised five claims in his Motion to Vacate. First, he contended that attorneys Perez, Baum, and Eric Chase, head of the Chase Law Firm, rendered ineffective assistance when they failed to pursue opportunities for Meza to cooperate with the Government ("Ground One"). Second, Meza argued that Baum and Vasquez rendered ineffective assistance at sentencing, because Baum failed to appear at the hearing and because Vasquez was unprepared and did not hold the Government to its burden of proof ("Ground Two"). Third, Meza asserted that his sentence violated the Supreme Court's holdings in Apprendi, Ring, Blakely, and Booker ("Ground Three"). As part of Ground Three, Meza argued that, if Meza was sentenced based solely on facts Meza admitted during his plea, then the Court would have not assigned him a leadership role. Thus, Meza posited, he could have qualified for a safety valve adjustment. Fourth, Meza averred that the Court violated his federal constitutional rights because it sentenced him under the mistaken assumption that the United States Sentencing Guidelines were mandatory rather than advisory ("Ground Four"). Lastly, Meza contended that he received ineffective assistance on appeal ("Ground Five"). Meza complains that his appellate counsel, Robert Ramos ("Ramos") did not raise an Apprendi-Ring issue on direct appeal. Meza also faults Ramos because, after the Court of Appeals affirmed Meza's judgment, Ramos allegedly did not inform Meza that he had a right to petition for rehearing or to seek certiorari review from the Supreme Court. Meza states that he would have pursued both options if he had known that they were available.
D. Subsequent Procedural History
In an Order dated April 29, 2005, the Court summarily dismissed Ground Three of Meza's Motion to Vacate, pursuant to Rule 4(b) of the Rules Governing § 2255 Cases. The Court, however, ordered the Government to answer Meza's remaining claims. After reviewing the Government's Response and Meza's Reply, the Court set an evidentiary hearing for September 29, 2005, to assist it in evaluating the merits of Meza's ineffective assistance claims.
For the reasons set forth at length in the Court's Order, the Court concluded that rule announced in Blakely, as extended to federal sentencing in Booker, does not apply retroactively to judgments that were final as January 12, 2005, the date of Booker's release. Because Meza's judgment became final on March 5, 2004, approximately ten months before the Supreme Court decided Booker, the Court found that Booker provided Meza with no legal basis for relief.
At the evidentiary hearing, Meza clarified that he wished to withdraw Ground Five of his Motion to Vacate, that is, his claim that appellate counsel rendered ineffective assistance. After the lengthy hearing concluded, the Court entered an Order allowing the Parties to file post-hearing briefs in light of the pleadings in this cause and the evidence elicited at the hearing. Only Meza availed himself of this opportunity, filing a "Post-Hearing Brief" ("Brief") under seal on November 10, 2005.
Evid, Hr'g Tr. 119-122.
In his Brief, Meza withdrew all of his ineffective assistance claims against Baum. Meza additionally abandoned his claim that Vasquez was ineffective at sentencing because he did not hold the Government to its burden of proof. Lastly, Meza withdrew his contention, raised in connection with Ground Three, that he could have qualified for a safety valve reduction. Meza conceded that he could not rebut the evidence on which the Court based its finding that Meza was a leader or organizer in the conspiracy.
D. The Claims Currently Before the Court
To summarize, only the following claims from Meza's Motion to Vacate are presently pending adjudication. Ground One remains to the extent Meza argues that Perez and Chase rendered ineffective assistance when they failed to pursue opportunities for Meza to cooperate with the Government. Ground Two remains, insofar as Meza alleges that Vasquez rendered ineffective assistance at sentencing because Vasquez was unprepared. Ground Four, Meza's claim that the Court erroneously assumed that the Sentencing Guidelines were mandatory, remains in its entirety, although, as discussed below, the Court must determine whether Meza has forfeited the claim by failing to raise this issue in his direct appeal. In contrast, Ground Three of Meza's Motion to Vacate has been previously dismissed with prejudice, and Meza has withdrawn Ground Five.
II. MOTIONS TO VACATE PURSUANT TO 28 U.S.C. § 2255
After a defendant has been convicted and exhausted or waived any right to appeal, a court is normally "entitled to presume that [he] stands fairly and finally convicted." Accordingly, "relief under 28 U.S.C. §§ 2255 is reserved for transgressions of constitutional rights and for a narrow range of injuries that could not have been raised on direct appeal and would, if condoned, result in a complete miscarriage of justice." A criminal defendant seeking relief from his conviction or sentence in a Motion to Vacate pursuant to 28 U.S.C. § 2255 must therefore establish one of the following: (1) his sentence was imposed in violation of the Constitution or laws of the United States; (2) the sentencing court lacked jurisdiction to impose the sentence; (3) the sentence imposed exceeded the maximum authorized by law; or (4) the sentence is otherwise subject to collateral attack.
United States v. Willis, 273 F.3d 592, 595 (5th Cir. 2001); United States v. Shaid, 937 F.2d 228, 231-31 (5th Cir. 1991).
United States v. Gaudet, 81 F.3d 585, 589 (5th Cir. 1996) (internal quotations and citations omitted).
United States v. Seyfert, 67 F.3d 544, 546 (5th Cir. 1995) (citations omitted).
It is well settled that, absent countervailing equitable considerations, a district court will refuse to adjudicate claims that were previously raised and rejected on direct review. It is also well settled that a collateral challenge may not take the place of a direct appeal. If a petitioner challenging his conviction and sentence pursuant to 28 U.S.C. § 2255 could have raised his constitutional or jurisdictional issues on direct appeal, he may not raise them for the first time on collateral review unless he shows cause for his procedural default and actual prejudice resulting from the error or that the constitutional violation has probably resulted in the conviction of one who is actually innocent.
Withrow v. Williams, 507 U.S. 680 (1993).
See Shaid, 937 F.2d at 231 ("[A] collateral challenge may not do service for an appeal").
Id. at 232.
To satisfy the "cause" standard, a petitioner must "show that some objective factor external to the defense prevented him from raising on direct appeal the claim he now advances." The procedural bar does not apply, however, to claims which could not have been raised on direct appeal, such as those alleging ineffective assistance of counsel. To establish "actual innocence" sufficient to overcome the procedural bar to review of his claims, a petitioner must present new evidence which, when considered with all the evidence presented at trial, makes it more likely than not that no reasonable juror would have convicted the petitioner. III. GROUND FOUR OF MEZA'S MOTION TO VACATE IS PROCEDURALLY BARRED, OR ALTERNATIVELY, PRECLUDED FROM AN ADJUDICATION ON THE MERITS BY FIFTH CIRCUIT PRECEDENT
United States v. Guerra, 94 F.3d 989, 993 (5th Cir. 1996).
See United States v. Pierce, 959 F.2d 1297, 1301 (5th Cir. 1992) (stating that the general rule in the Fifth Circuit is that, except in rare instances where the record on direct appeal is adequate to evaluate such a challenge, an ineffective assistance of counsel claim cannot be resolved on direct appeal because no opportunity existed for the parties to develop the record on the merits of the allegations).
Schlup v. Delo, 513 U.S. 298, 327-28 (1995).
In Ground Four of his Motion to Vacate, Meza argues that the Court mistakenly assumed that the Sentencing Guidelines were mandatory. The Supreme Court's holding in Booker, he contends, has clarified that the Sentencing Guidelines are actually advisory. Meza also asserts that the Court would have imposed a lower sentence had it understood that it had the discretion to do so.
The Government responds that, because Meza failed to raise this claim on direct appeal, he has defaulted the claim. It further argues that Meza is not now entitled to an adjudication on the merits because he has not demonstrated cause and prejudice to overcome the procedural bar to review. Citing Reed v. Ross, 468 U.S. 1, 13-16 (1984), Meza counters that the novelty of the issue raised in Ground Four constitutes "cause." That is, Meza argues that the novelty of the issue was such that, under the criteria set forth in Ross, the claim that Meza now asserts was not reasonably available to appellate counsel.
The Court finds that Meza's reliance on Ross is misplaced. The Ross Court held that "where a constitutional claim is so novel that its legal basis is not reasonably available to counsel, a defendant has cause for his failure to raise the claim in accordance with applicable . . . procedures." The Ross Court then considered whether the claim at bar was sufficiently novel that the defendant's attorney had "cause" for failing to raise the claim:
Although the question of whether an attorney has a "reasonable basis" upon which to develop a legal theory may arise in a variety of contexts, we confine our attention to the specific situation presented here: one in which this Court has articulated a constitutional principle that had not been previously recognized but which is held to have retroactive application.
Ross, 468 U.S. at 16.
Id. at 17.
Here, Meza relies on the rule announced in Booker for relief. However, every circuit court of appeals to have considered the matter, including the Fifth Circuit, has held that, while the rule announced in Booker represents a new rule of constitutional criminal procedure, it does not apply retroactively to judgments which were already final on the date of Booker's release. The Fifth Circuit has also held that Booker claims may not be raised for the first time in an initial or successive § 2255 motion.
See United States v. Gentry, 432 F.3d 600, 605-06 (5th Cir. 2005) (holding that the rule announced in Booker does not apply retroactively to already final judgments and may not be raised for the first time in an initial or successive § 2255 motion); Lloyd v. United States, 407 F.3d 608, 614 (3rd Cir. 2005) (joining its sister circuit courts of appeals in holding that Booker does not apply retroactively to initial motions under 28 U.S.C. § 2255 where the judgment was final as of January 12, 2005); Guzman v. United States, 404 F.3d 139, 144 (2d Cir. 2005) (holding that Booker is not retroactive and does not apply to judgments that were final before January 12, 2005); United States v. Price, 400 F.3d 844, 845 (10th Cir. 2005) (concluding that Booker does not apply to initial habeas corpus petitions brought pursuant to 28 U.S.C. § 2255); Humphress v. United States, 398 F.3d 855, 856 (6th Cir. 2005) (holding that Booker does not apply retroactively to cases already final on direct review); Varela v. United States, 400 F.3d 864, 868 (11th Cir. 2005) (" Booker's constitutional rule falls squarely under the category of new rules of criminal procedure that do not apply retroactively to § 2255 cases on collateral review."); McReynolds v. United States, 397 F.3d 479, 481 (7th Cir. 2005) ("We conclude . . . that Booker does not apply retroactively to criminal cases that became final before its release on January 12, 2005.").
Gentry, 432 F.3d at 605-06.
For the foregoing reasons, the Court finds that Meza has not demonstrated cause for his failure to raise Ground Four in his direct appeal and therefore has forfeited a merits review of that claim in his Motion to Vacate. Alternatively, the Court concludes that relief on Ground Four is precluded by Fifth Circuit precedent holding that Booker claims may not be entertained in a Motion to Vacate pursuant to 28 U.S.C. § 2255. The Court now turns to the legal standard governing its merits review of Meza's remaining claims for relief.
Id.
IV. LEGAL STANDARD — INEFFECTIVE ASSISTANCE OF COUNSEL
An ineffective assistance of counsel claim has two components. First, the petitioner must show that counsel performed deficiently. To establish deficient performance, a petitioner must demonstrate that counsel's representation "fell below an objective standard of reasonableness." The Supreme Court has "declined to articulate specific guidelines for appropriate attorney conduct and instead ha[s] emphasized that 'the proper measure of attorney performance remains simply reasonableness under prevailing professional norms.'"
Wiggins, 539 U.S. at 521; Strickland v. Washington, 466 U.S. 668, 687 (1984).
Wiggins, 539 U.S. at 521.
Id.
Id. (quoting Strickland, 466 U.S. at 688).
To establish that counsel's representation fell below an objective standard of reasonableness, a petitioner must overcome a strong presumption that his attorney's conduct fell within a wide range of reasonable professional assistance. Reviewing courts are extremely deferential in scrutinizing counsel's performance, making every effort to eliminate the distorting effects of hindsight. It is strongly presumed that counsel rendered adequate assistance and exercised reasonable professional judgment in making all significant decisions. An attorney's strategic choices, usually based on information supplied by the defendant and from a thorough investigation of relevant facts and law, are virtually unchallengeable. Counsel is neither required to advance every non-frivolous argument, nor to investigate every conceivable matter, nor to assert patently frivolous arguments. Defense counsel is similarly not required to exercise clairvoyance during the course of a criminal trial.
Strickland, 466 U.S. at 687-91.
See, e.g., Lockhart v. Fretwell, 506 U.S. 364, 372 (1993) (explaining the compelling policy considerations behind Strickland's contemporary, rather than retrospective, assessment of counsel's conduct); Burger v. Kemp, 483 U.S. 776, 789 (1987) (stating that a fair assessment of attorney performance requires the court to make every effort to eliminate the distorting effect of hindsight and to evaluate counsel's decisions based on the then-existing circumstances and counsel's perspective at the time); Green v. Johnson, 116 F.3d 1115, 1122 (5th Cir. 1997) (stating that the court will not find inadequate representation merely because, with the benefit of hindsight, it disagrees with counsel's strategic choices).
Strickland, 466 U.S. at 690; Drew v. Collins, 964 F.2d 411, 422 (5th Cir. 1992); Duff-Smith v. Collins, 973 F.2d 1175, 1182 (5th Cir. 1992).
See Boyle v. Johnson, 93 F.3d 180, 187-88 (5th Cir. 1996) (holding that an attorney's decision not to pursue a mental health defense or to present mitigating evidence concerning the defendant's possible mental illness was reasonable where counsel feared that the jury would not view such testimony as mitigating and that the prosecution might respond to such testimony by presenting its own psychiatric testimony regarding the defendant's violent tendencies); West v. Johnson, 92 F.3d 1385, 1406-09 (5th Cir. 1996) (holding that a trial counsel's failure to conduct further investigation into the defendant's head injury and psychological problems was reasonable where interviews with the defendant and the defendant's family failed to produce any helpful information); cf. Wiggins, 539 U.S. at 524 (holding that, in a capital case, counsel's decision not to expand its mitigation-defense investigation beyond reviewing a presentence investigation report and Department of Social Services records, despite suggestions that additional, significant mitigating evidence existed, was unreasonable and fell below professional standards).
See Sones v. Hargett, 61 F.3d 410, 415 n. 5 (5th Cir. 1995) (stating that counsel cannot be held deficient for failing to press a frivolous point); United States v. Gibson, 55 F.3d 173, 179 (5th Cir. 1995) (stating that the Sixth Amendment does not require counsel to file meritless motions); Smith v. Collins, 977 F.2d 951, 960 (5th Cir. 1992) (noting that the defense of a criminal case is not an undertaking in which everything not prohibited is required, nor does it contemplate the employment of wholly unlimited time and resources).
See Sharp v. Johnson, 107 F.3d 282, 290 n. 28 (5th Cir. 1997) (holding that clairvoyance is not a required attribute of effective representation).
Furthermore, even if counsel's performance falls below an objective standard of reasonableness, "[a]n error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment." Accordingly, "any deficiencies in counsel's performance must be prejudicial to the defense in order to constitute ineffective assistance under the Constitution."
Strickland, 466 U.S. at 691-92.
Id. at 692.
Because a convicted defendant must satisfy both prongs of the Strickland test, his failure to establish either deficient performance or prejudice under that standard makes it unnecessary for a court to examine whether the petitioner has satisfied the other prong. Therefore, a convicted defendant's failure to establish that his counsel's performance fell below an objective standard of reasonableness avoids the need to consider the issue of prejudice. Similarly, it is also unnecessary to consider whether counsel's performance was deficient where there is an insufficient showing of prejudice. Moreover, mere conclusory allegations in support of claims of ineffective assistance of counsel are insufficient, as a matter of law, to raise a constitutional issue. With the above principles in mind, the Court considers whether Meza has established a claim of constitutionally inadequate assistance of counsel. V. THE MERITS OF MEZA'S INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS AGAINST PEREZ AND CHASE
Id. at 700; Green, 116 F.3d at 1122; see also Burnett v. Collins, 982 F.2d 922, 928 (5th Cir. 1993) (stating that the defendant bears the burden of proof on both prongs of the Strickland test).
Hoskins, 910 F.2d at 311; Thomas, 812 F.2d at 229-30.
See Strickland, 466 U.S. at 699 (explaining that it is not necessary for a court evaluating the merits of an ineffective assistance claim to analyze the components of the applicable test in any particular order or to evaluate both components if the petitioner fails to carry his burden as to one aspect of the test); Black v. Collins, 962 F.2d 394, 401 (5th Cir. 1992) (stating that a court evaluating a claim of ineffective assistance need not address the components of the applicable test in order, and if a defendant fails to carry his burden as to one component of the test, the court need not address the other component); Pierce, 959 F.2d at 1302 (asserting that an insufficient showing of prejudice pretermits addressing the adequacy prong of the Strickland test for ineffective assistance).
See Kinnamon v. Scott, 40 F.3d 731, 735 (5th Cir. 1994) (holding that a petitioner's speculative complaints of ineffective assistance by appellate counsel did not warrant federal habeas relief).
Meza argues that, but for the deficient performance of Perez and Chase, he would have received a downward departure from the otherwise applicable imprisonment range, pursuant to United States Sentencing Guideline § 5K2.1, for substantially assisting the Government. After considering the record in this cause and the testimony given at the evidentiary hearing, the Court finds that Meza has not demonstrated that he received constitutionally ineffective assistance of counsel. Specifically, the Court finds that Meza has not shown that he was prejudiced by Perez's or Chase's actions or omissions, if any.
Meza's failure to show prejudice stemming from his attorneys' deficiencies, if any, makes it unnecessary for the Court to consider whether either Perez or Chase performed below a constitutionally adequate standard. However, the Court notes that it finds Chase's performance, in particular, lacking. In the Court's view, it was professionally unreasonable for Chase to assume that the Court would grant any significant continuance in this case, given the late stage of the proceedings.
The Court finds that, even if Meza had been given an opportunity to debrief Government agents before or immediately after sentencing, Meza would not have given the agents truthful and complete information that rose to the level of substantial assistance. The Court credits the testimony at the hearing, to the effect that Meza either adamantly refused or continually wavered in his willingness to provide specific, incriminating information about the conspiracy in general or co-conspirators higher up the chain of command. The Court also notes that Meza had an opportunity to debrief after his appeal became final, but refused to cooperate. Meza's refusal to disclose any valuable information followed on the heels of his appellate counsel's express advice regarding the agents' particular areas of interest and counsel's admonition that Meza must fully cooperate with the agents if he hoped to win a reduction in his sentence. Although Meza insisted during his testimony that the inadequacy of his legal representation up to that point caused the fear and frustration which precipitated the disastrous debriefing interview, the Court does not find Meza's testimony credible. Rather, the Court finds that, all along, Meza's strategy was to disclose the bare minimum necessary, in his mind, to receive a favorable sentencing adjustment. In light of these circumstances, the Court finds that Meza would not have completely and truthfully debriefed the Government, whether he had spoken with agents either immediately before or immediately after sentencing. Because Meza has failed to satisfy both prongs of the Strickland test for ineffective assistance of counsel, his claims against Perez and Chase necessarily fail.
VI. THE MERITS OF MEZA'S INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM AGAINST VASQUEZ
The Court finds that Meza has not shown that Vasquez performed deficiently. While Vasquez may not have been ideally prepared beforehand to represent Meza at sentencing, the lack of time to prepare was not a circumstance of Vasquez's own making. Rather, Meza, by choosing to retain new counsel immediately before his sentencing date, without knowing whether the Court would delay the hearing, and Chase, by accepting the case, ran the risk that new counsel would not have adequate time to familiarize himself with Meza's case. Vasquez, who was initially hired by Chase for a very limited purpose, subsequently found himself caught up in the morass created by Chase's erroneous and professionally unreasonable assumption that the Court would grant a continuance. Vasquez brought his lack of preparation to the Court's attention and thereafter had no control over whether and to what extent the Court chose to accommodate him. Under the difficult circumstances, the Court finds, Vasquez did a more than adequate job on Meza's behalf. Meza's failure to show that Vasquez performed deficiently is fatal to his ineffective assistance claim. VI. CERTIFICATE OF APPEALABILITY
See supra text accompanying note 33.
To appeal the denial of a Motion to Vacate filed under 28 U.S.C. § 2255, the petitioner must obtain a Certificate of Appealability. Appellate review of a habeas petition is moreover limited to the issues on which a CoA is granted. In other words, a CoA is granted or denied on an issue-by-issue basis, thereby limiting appellate review to solely those issues on which CoA is granted.
See Crutcher v. Cockrell, 301 F.3d 656, 658 n. 10 (5th Cir. 2002), (holding that a CoA is granted on an issue-by-issue basis, thereby limiting appellate review to those issues); Jones v. Cain, 227 F.3d 228, 230 n. 2 (5th Cir. 2000) (holding the scope of appellate review from the denial of habeas petition is limited to issue on which the CoA granted).
28 U.S.C.A. § 2253(c)(3) ; Crutcher, 301 F.3d at 658 n. 10; Hill v. Johnson, 114 F.3d 78, 80 (5th Cir. 1997); Muniz v. Johnson, 114 F.3d 43, 45 (5th Cir. 1997); Murphy v. Johnson, 110 F.3d 10, 11 n. 1 (5th Cir. 1997).
A CoA to appeal the denial of a Motion to Vacate shall be granted only upon "a substantial showing of the denial of a constitutional right." The showing necessary to obtain a CoA on a particular claim depends upon the manner in which the District Court has disposed of a claim. If the Court rejects a prisoner's constitutional claim on the merits, he must then demonstrate that reasonable jurists could find the Court's assessment of the constitutional claim to be debatable or wrong. If the petitioner wishes to challenge the Court's dismissal of a claim for a reason not of constitutional dimension, such as procedural default, limitations, or lack of exhaustion, he must satisfy two requirements. First, the petitioner must demonstrate that jurists of reason would debate whether the petition states a valid constitutional claim. Second, the petitioner must show that jurists of reason would debate whether the Court was correct in its procedural ruling. This Court is authorized to address the propriety of granting a CoA sua sponte.
28 U.S.C.A. § 2253(c)(2); Miller-El, 537 U.S. at 327.
Miller-El, 537 U.S. at 338.
Slack v. McDaniel, 529 U.S. 473, 484 (2000).
Id.
Id.
Alexander v. Johnson, 211 F.3d 895, 898 (5th Cir. 2000).
After considering the entire record, the testimony elicited at the evidentiary hearing held on September 29, 2005, and the Parties' pleading, the Court concludes that, with respect to Meza's ineffective assistance claims against Perez and Chase raised in Ground One, jurists of reason could debate whether Meza has stated a valid claim for relief. Accordingly, the Court will certify Ground One for appeal, to the extent Meza claims that Perez and Chase were ineffective for failing to pursue a sentencing reduction based on Meza's substantial assistance. Tin contrast, the Court finds that, with respect to Meza's other grounds for relief, there can be no disagreement over whether Meza has stated a valid constitutional claim or regarding the correctness of the Court's procedural rulings. The Court accordingly declines to certify any of Meza's remaining issues for appeal.
VII. CONCLUSION ORDER
For the reasons discussed above, the Court finds that Meza is not entitled to relief regarding the claims he raises in his Motion to Vacate. The Court additionally finds that, while Meza is entitled to a Certificate of Appealability regarding his ineffective assistance claims against Perez and Chase, raised in Ground One, he is not entitled to a Certificate of Appealability regarding his remaining claims. The Court accordingly enters the following Orders:
1. Petitioner Eduardo Paul Meza-Bedoya's "Motion to Vacate, Set Aside, or Correct Sentence" [Docket No. 77], filed through counsel on April 25, 2005, is hereby DENIED.
2. The Court GRANTS Petitioner a Certificate of Appealability with respect to Ground One of his Motion to Vacate, specifically, Petitioner's claim that attorneys Albert Perez, Jr., and Eric Chase were ineffective because they did not pursue opportunities for Petitioner to obtain a sentencing reduction for substantial assistance. The Court DENIES a Certificate of Appealability with regard to Petitioner's remaining claims.
3. All pending motions in this cause, if any, are DENIED AS MOOT.
SO ORDERED.