Opinion
EP-05-CA-0100-FM, EP-03-CR-1757-FM.
July 26, 2005
MEMORANDUM OPINION ORDER
Before the Court is Petitioner Felipe Esquivel's Amended Motion to Vacate pursuant to 28 U.S.C. § 2255, filed on May 23, 2005. For the reasons discussed below, the Court concludes that Esquivel's Amended Motion to Vacate should be summarily dismissed pursuant to Rule 4(b) of the Rules Governing § 2255 Cases. The Court will additionally decline to certify Esquivel's issues for appeal.
I. BACKGROUND PROCEDURAL HISTORY A. Criminal cause no. EP-03-CR-1757-FM
On September 17, 2003, the Grand Jury sitting in El Paso, Texas returned a one-count Indictment against Esquivel, charging him with possession of 100 kilograms or more of marijuana with the intent to distribute it, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B)(vii) (Count One). A violation of § 841(a)(1) involving 100 kilograms or more of marijuana carries a mandatory minimum 5-year term of imprisonment.
Esquivel decided to forego trial, choosing instead to accept a plea agreement offered by the Government. Under the terms of that agreement, Esquivel consented to plead guilty to Count One of the Indictment. The agreement further required Esquivel to admit that he possessed 175 kilograms of marijuana and to waive virtually all of his appellate rights. In return for Esquivel's concessions, the Government pledged not to oppose a two-level downward adjustment for acceptance of responsibility, and if it were granted by the Court, to move for the award of a third level. The Government additionally agreed not to oppose a minor role adjustment, if the evidence supported such a finding. Further, if Esquivel met the criteria set forth in U.S.S.G. §§ 5C1.2(1)-(5), the Government promised not to oppose a two-level "safety valve" adjustment pursuant to U.S.S.G. §§ 2D1.1(b)(6). Esquivel accordingly pleaded guilty to Count One of the Indictment on December 3, 2003. The Court accepted the plea on the same day and referred the matter to U.S. Probation for the preparation of a Presentence Report ("PSR").
At sentencing on March 9, 2004, Esquivel's attorney, Michael A. Villalba ("Villalba"), orally objected to the PSR on two grounds. First, Villalba argued that the PSR over-represented his client's criminal history because it assigned two points for what Villalba described as two relatively remote and minor 1996 convictions for aiding and abetting an illegal alien. Villalba noted that the two convictions had actually arisen from the same episode and that Esquivel, who was not represented by counsel, had merely pleaded guilty to both charges in exchange for time served — 75 days. Given the circumstances of the prior convictions and the fact that two criminal history points would render his client ineligible for a safety valve exception to the otherwise applicable 5-year minimum sentence under 18 U.S.C. § 3553, Villalba urged the Court to find that Esquivel should only be awarded one criminal history point. Second, Villalba opposed the PSR's recommendation that the Court deny Esquivel a 2-level reduction for minor role. Villalba acknowledged that Esquivel had been paid $10,000 to transport the marijuana from El Paso, Texas to Dallas, Texas, but emphasized that there was no evidence to suggest that Esquivel was a supplier, buyer, or upper-level manager in the scheme.
The Court continued sentencing until March 31, 2004, directing Villalba to file a written motion regarding his objection to the over-representation of Esquivel's criminal history and giving the Government an opportunity to respond. When the proceedings reconvened, the Court denied Villalba's objection from the bench. It found that Esquivel's total offense level was 23 and placed him in criminal history category II, with a corresponding punishment range of 60 to 63 months. The Court entered Judgment the same day, sentencing Esquivel to a 60-month term of imprisonment and a 4-year term of non-reporting supervised release. The Court additionally ordered Esquivel to pay a $100 special assessment. Esquivel did not appeal.
B. Esquivel's Amended Motion to Vacate pursuant to 28 U.S.C. § 2255
Pursuant to Haines v. Kerner, 404 U.S. 519, 596 (1972), the Court has liberally read Esquivel's Amended Motion to Vacate. The Court understands him to argue the following. First, Esquivel alleges that he received ineffective assistance at sentencing. Specifically, he contends that Villalba should have raised a Sixth Amendment objection, paralleling the argument raised in Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004) (" Blakely"), to any increase in his punishment range based on facts found by this Court. Esquivel asserts that he also received ineffective assistance on appeal because Villalba did not challenge his sentence on the same grounds. Third, Esquivel argues that his sentence was imposed in a manner that violates the Supreme Court's holding in United States v. Booker, ___ U.S. ___, 125 S. Ct. 738 (2005) (" Booker"). Fourth, he avers that the Court, by determining that certain of Esquivel's prior convictions constituted aggravated felonies or drug trafficking offenses, constructively amended the Indictment and thus violated the holding of United States v. Cotton, 535 U.S. 625 (2002).
II. LEGAL STANDARD
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) (citing United States v. Frady, 456 U.S. 152, 164 (1982); 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).
See United States v. Seyfert, 67 F.3d 544, 546 (5th Cir. 1995) (citations omitted).
Moreover, "when raising issues of jurisdictional or constitutional magnitude for the first time on collateral review, a defendant ordinarily must show both cause for his procedural default and actual prejudice resulting from the error." This cause-and-actual-prejudice standard is "significantly more rigorous than even the plain error standard applied on direct appeal." 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.
Gaudet, 81 F.3d at 589.
Id.
Rule 4(b) of the Rules Governing Section 2255 Proceedings provides that "if it plainly appears from the face of the motion and any annexed exhibits and the prior proceedings in the case that the movant is not entitled to relief in the district court, the judge shall make an order for summary dismissal and cause the movant to be notified." USCS § 2255 Proc. R. 4(b) (2004).
III. ESQUIVEL'S INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS A. 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 v. Smith, 539 U.S. 510, 521 (2003); Strickland v. Washington, 466 U.S. 668, 687 (1984).
Wiggins, 539 U.S. at 521.
Id.
Id.
To establish that counsel's representation fell below an objective standard of reasonableness, a petitioner must overcome a strong presumption that his trial counsel'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.
See Darden v. Wainwright, 477 U.S. 168, 184 (1986); Strickland, 466 U.S. at 687-91; Lackey v. Johnson, 116 F.3d 149, 152 (5th Cir. 1997); Belyeu v. Scott, 67 F.3d 535, 538 (5th Cir. 1995).
See, e.g., Lockhart v. Fretwell, 506 U.S. 364, 372 (1993); Burger v. Kemp, 483 U.S. 776, 789 (1987); Strickland, 466 U.S. at 689; Green v. Johnson, 116 F.3d 1115, 1122 (5th Cir. 1997).
See 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 was concerned that such testimony would not be viewed as mitigating by the jury and that the prosecution might respond to such testimony by putting on 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 presentence investigation report and Department of Social Services records, despite suggestions that additional, significant mitigating evidence existed, was itself 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 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) (citing Garland v. Maggio, 717 F.2d 199, 207 (5th Cir. 1983) (holding that clairvoyance is not a required attribute of effective representation)).
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 test makes it unnecessary to examine 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.
Strickland, 466 U.S. at 700; Green, 116 F.3d at 1122; see also Burnett v. Collins, 982 F.2d at 928 (holding 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 Black, 962 F.2d at 401; Pierce, 959 F.2d at 1302.
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).
With these principles in mind, the Court turns to the merits of Esquivel's claims for relief.
B. Discussion
Esquivel faults Villalba for failing to raise a Sixth Amendment objection to any increase in his client's sentencing range based on facts found by this Court. For the reasons discussed below, the Court finds that Esquivel has failed to carry his burden regarding the first prong of the Strickland test for ineffective assistance of counsel.
The constitutionality of the federal sentencing scheme was not in doubt before Blakely's release on June 24, 2004 and not resolved until the Supreme Court decided Booker on January 12, 2005. As noted elsewhere in this Memorandum Opinion Order, the Court entered Judgement in Esquivel's case on March 31, 2004, some three months before Blakely was decided and well past the time for filing a timely Notice of Appeal. Moreover, the Blakely opinion itself expressly reserved judgment as to constitutionality of the Federal Sentencing Guidelines under the Sixth Amendment. In the absence of any Supreme Court opinion expressly rejecting the constitutionality of the Federal Sentencing Guidelines, Villalba's failure to raise this argument does not make his performance constitutionally ineffective. Counsel does not perform deficiently merely by declining to raise every nonfrivolous ground of appeal available. Accordingly, Esquivel has not shown, as it is his burden to do, that Villalba's failure to raise a then-novel Sixth Amendment claim at sentencing or on appeal fell below an objectively reasonable standard of attorney performance. His ineffective assistance of counsel claims are accordingly dismissed with prejudice.
See Mistretta v. United States, 488 U.S. 361, 391 (1989) (upholding the constitutionality of the Guidelines against an Equal Protection and over-delegation-of-congressional authority challenge).
542 U.S. 296, *17 n. 9, 124 S. Ct. 2531, 2538 n. 9 (2004).
Green v. Johnson, 160 F.3d 1029, 1043 (5th Cir. 1998).
IV. ESQUIVEL'S BOOKER CLAIM
The Fifth Circuit Court of Appeals has recently joined the other circuit courts of appeal to consider the matter and held that Booker announced a new procedural rule which does not apply retroactively to initial habeas petitions pursuant to 28 U.S.C. § 2255. That is, judgments that became final before January 12, 2005 may not claim relief pursuant to Booker.
See Padilla v. United States, No. 04-50567, ___ F.3d ___, ___, 2005 U.S. App. LEXIS 13580, at *7 (5th Cir. July 8, 2005) (per curiam) (stating that Booker's holding does not apply retroactively to cases on collateral review); see also Lloyd v. United States, No. 04-cv-03687, ___ F.3d ___, ___, 2005 WL 1155220, at *6, 2005 U.S. App. LEXIS 8699, at *19 (3rd Cir. May 17, 2005) (holding that Booker does not apply retroactively); Guzman v. United States, No. 03-2446, ___ F. 3d ___, ___, 2005 WL 803214, *1, 2005 U.S. App. LEXIS 5700, *3 (2d. Cir. Apr. 8, 2005) (holding that Booker is not retroactive and therefore does not apply to judgments that were final before Jan. 12, 2005); United States v. Price, 400 F.3d 844, 845 (10th Cir. 2005) (holding 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. Feb. 25, 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. Feb. 17, 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 (7th Cir. Feb. 2, 2005) ("We conclude . . . that Booker does not apply retroactively to criminal cases that became final before its release on Jan. 12, 2005.").
Here, because Esquivel did not appeal, Judgment became final on April 10, 2004, approximately ten months before Booker's release. As Booker therefore provides Esquivel with no legal basis for relief, the Court concludes that it should dismiss his Booker claim with prejudice.
V. ESQUIVEL'S REMAINING CLAIM
Esquivel contends that this Court, by finding that certain of his prior convictions constituted aggravated felonies or drug trafficking offenses, constructively and illegally amended the Indictment under the Supreme Court's holding in United States v. Cotton, 535 U.S. 625 (2002) (" Cotton"). After due consideration, the Court finds that Esquivel has waived this claim. Alternatively, the Court finds that the claim is frivolous, as it has no basis in fact or law.
It is well settled that a collateral challenge may not substitute for an appeal. If, as here, Esquivel could have raised this issue on direct appeal, he may not raise it for the first time in his instant Motion to Vacate 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. To the extent Esquivel asserts that his counsel's failure to raise this claim on appeal constitutes "cause" for his default, his argument is unavailing for the reasons discussed below.
See United States v. Shaid, 937 F.2d 228, 231 (5th Cir. 1991) (en banc).
See id. at 232.
A. The Cotton case
In Cotton, the Grand Jury returned an Indictment charging the defendants with conspiring to possess and distribute 5 kilograms or more of cocaine and 50 grams or more of cocaine base, in violation of 21 U.S.C. §§ 846 and 841(a)(1). The Grand Jury subsequently returned a Superseding Indictment which only charged the defendants with conspiracy to possess and distribute a "detectable amount" of cocaine, without alleging any of the threshold levels of drug quantity that lead to enhanced penalties under § 841(b). At trial, the district judge instructed the jury that as long as it found that a defendant conspired to distribute and to possess with the intent to distribute the controlled substances named in the Superseding Indictment, it need not determine an amount. The jury found the defendants guilty.
United States v. Cotton, 535 U.S. 625, 627 (2002).
Id. at 627-8.
Id. at 628.
Id.
As the Superseding Indictment did not allege a specific quantity of cocaine or cocaine base, the defendants should have been subject to a maximum 20-year term on imprisonment, pursuant to 21 U.S.C. § 841(b)(1)(C). The district judge, however, made certain drug quantity findings based on trial testimony and sentenced the defendants under the enhancement provisions of 841(b)(1)(A). Two defendants found liable for 500 grams of cocaine base each received 30-year terms of imprisonment. The remaining defendants were each held responsible for 1.5 kilograms of cocaine base and received life terms. The defendants did not object that to the fact that the district judge based their sentences on a drug quantity not alleged in the Superseding Indictment.
Id.
Id.
Id.
Id.
While the appeal was pending before the Fourth Circuit Court of Appeals, the Supreme Court decided Apprendi v. New Jersey, 530 U.S. 466 (2000). The defendants then argued for the first time that their sentences were invalid because the issue of drug quantity was neither alleged in the Superseding Indictment nor submitted to the petit jury. After reviewing the argument for plain error, a divided panel of the Court of Appeals vacated the defendants' sentences. The Court of Appeals reasoned that an indictment setting forth all the essential elements of an offense is both mandatory and jurisdictional and therefore the district court lacked jurisdiction to impose a sentence for an offense was not charged in the Superseding Indictment.
Id.
Id. at. 628-9.
Id. at 629.
Id.
The Supreme Court reversed, holding that defects in an indictment do not deprive a court of power to adjudicate a case. Applying Federal Rule of Criminal Procedure 52(b)'s plain error test, the Court concluded that although the error was plain under Apprendi and affected the defendants' substantial rights, it nonetheless did not seriously affect the fairness, integrity, or public reputation of the proceedings. The Court explained that overwhelming and uncontroverted evidence implicated the conspirators in handling drug quantities far exceeding 50 grams of cocaine base. It reasoned that the Grand Jury, having found that a conspiracy existed, would certainly have also found that the conspiracy involved at least 50 grams of cocaine base. It further noted Congress' intent that defendants involved in large-scale drug operations receive more severe punishment than those committing drug offense involving lesser drug quantities. In light of these considerations, the Court concluded that it would have a far more injurious effect on the fairness, integrity and public reputation of judicial proceedings if the defendants, despite overwhelming and uncontroverted evidence that they were involved in a vast drug conspiracy, were to receive a sentence intended for those who commit a substantially lesser offense, merely because of an error that was never objected to at trial. B. Discussion
Id. at 630.
Id. at 632-3.
Id. at 633.
Id. at 634.
Id.
To the extent that Esquivel contends that this Court made a factual finding that certain of his offenses constituted aggravated felonies or drug trafficking offenses, his argument has no basis in fact. As noted elsewhere in this Memorandum Opinion Order, Esquivel received one criminal history point each for his two 1996 convictions for aiding and abetting an illegal alien. No other criminal history points were assigned.
Inasmuch as Esquivel asserts that the Court somehow amended the Indictment, his argument is without merit. The Indictment expressly charged Esquivel with possessing 100 kilograms or more of marijuana with the intent to distribute it. It is to this charge that Esquivel pleaded guilty after admitting that he was paid $10,000 by a third party to transport 175 kilograms of marijuana from El Paso, Texas, to Dallas, Texas. As Esquivel has failed to show any basis in law or fact for his argument, he has similarly failed to show that counsel performed in a professionally unreasonable manner by declining to raise a frivolous claim on appeal. Nor does Esquivel allege that he is actually innocent of the crime charged. He makes no attempt to retract his sworn statements at the plea hearing admitting that he was guilty and that the factual basis for the plea was true. Because Esquivel has failed to show either cause or prejudice for his default or actual innocence, the Court dismisses his remaining claim with prejudice.
VI. CERTIFICATE OF APPEALABILITY
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") converted the "certificate of probable cause" ("CPC") required to appeal from the denial of a petition for federal habeas corpus relief, including the denial of § 2255 Motions to Vacate, into a Certificate of Appealability ("CoA"). To appeal the denial of a habeas corpus petition filed under 28 U.S.C. § 2255, the petitioner must obtain a CoA. 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 Hill v. Johnson, 114 F.3d 78, 80 (5th Cir. 1997) (recognizing that the "substantial showing" requirement for a CoA under the AEDPA is merely a change in nomenclature from the certificate of probable cause standard); Muniz v. Johnson, 114 F.3d 43, 45 (5th Cir. 1997) (holding that the standard for obtaining a CoA is the same as for a CPC); see also Robison v. Johnson, 151 F.3d 256, 259 n. 2 (5th Cir. 1998), cert. denied, 526 U.S. 1100 (1999) (stating that the CoA requirement supersedes the previous requirement for a certificate of probable cause to appeal for federal habeas corpus petitions filed after the effective date of the AEDPA); Hallmark v. Johnson, 118 F.3d 1073, 1076 (5th Cir. 1997), cert. denied sub nom. Monroe v. Johnson, 523 U.S. 1041 (1998) (same).
See Miller-El v. Johnson, 537 U.S. 322, 335-6 (2003); 28 U.S.C.A. § 2253(c)(2) (West Supp. 2003).
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 same); Lackey v. Johnson, 116 F.3d 149, 151 (5th Cir. 1997) (holding that the scope of appellate review of denial of habeas petition is limited to issue on which CoA granted).
See Crutcher v. Cockrell, 301 F.3d at 658 n. 10; Lackey v. Johnson, 116 F.3d at 151; Hill v. Johnson, 114 F.3d at 80; Muniz v. Johnson, 114 F.3d at 45; Murphy v. Johnson, 110 F.3d 10, 11 n. 1 (5th Cir. 1997); 28 U.S.C.A. § 2253(c)(3) (West Supp. 2003).
A CoA to appeal the denial of a habeas corpus petition 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 this 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 this Court's dismissal of a claim for a reason not of constitutional dimension, such as procedural default, limitations, or lack of exhaustion, he must show that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and whether this 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. § 2253(c)(2); Miller-El v. Cockrell, 537 U.S. 322, 327 (2003).
Miller-El v. Johnson, 537 U.S. at 338.
Slack v. McDaniel, 529 U.S. at 484 (holding that when a district court denies a habeas claim on procedural grounds, without reaching the underlying constitutional claim, a CoA may issue only when the petitioner shows that reasonable jurists would find it debatable whether: (1) the claim is a valid assertion of the denial of a constitutional right; and (2) the district court's procedural ruling was correct).
Alexander v. Johnson, 211 F.3d 895, 898 (5th Cir. 2000).
After considering the entire record and Esquivel's pleadings, the Court concludes that jurists of reason would not debate whether he has stated a valid claim for relief or whether a procedural ruling in this case is correct. Accordingly, the Court declines to issue a Certificate of Appealability regarding his claims for relief. V. CONCLUSION ORDER
In sum, the Court concludes that Petitioner Felipe Esquivel's Amended Motion to Vacate, Set Aside, or Correct Sentence filed pursuant to 28 U.S.C. § 2255 should be denied and this matter dismissed with prejudice. The Court further finds that Petitioner is not entitled to a Certificate of Appealability. The Court accordingly enters the following orders:
1. Petitioner Felipe Esquivel's Amended Motion to Vacate, Set Aside, or Correct Sentence, filed on May 23, 2005, pursuant to 28 U.S.C. § 2255, is DENIED and this matter is DISMISSED WITH PREJUDICE.
2. Petitioner Felipe Esquivel is DENIED a CERTIFICATE OF APPEALABILITY.
3. All pending motions in this cause, if any, are DENIED AS MOOT.
SO ORDERED.
FINAL JUDGMENT
On this day, the Court entered an Order denying Petitioner Felipe Esquivel's Amended Motion to Vacate, Set Aside or Correct Sentence, filed on May 23, 2005, pursuant to 28 U.S.C. § 2255. The Court further denied Petitioner a Certificate of Appealability regarding his claims. The Court now enters its Final Judgment pursuant to Rule 58 of the Federal Rules of Civil Procedure.Accordingly, IT IS ORDERED that Petitioner Felipe Esquivel's Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255 is DENIED and this action is DISMISSED WITH PREJUDICE. IT IS ALSO ORDERED that Petitioner Felipe Esquivel is DENIED a CERTIFICATE OF APPEALABILITY. IT IS FURTHER ORDERED that all other pending motions, if any, are DENIED AS MOOT.