The opinion of the court was delivered by: Hon. Thomas J. Whelan United States District Judge
ORDER DENYING CERTIFICATE OF APPEALABILITY
On October 10, 2008, Petitioner Fernando Guerrero-Ledesma ("Petitioner"), a federal prisoner proceeding pro se, filed a Petition for Writ of Habeas Corpus ("Petition") seeking relief under 18 U.S.C. §3582 and 28 U.S.C. § 2255. (Doc. No. 22.*fn1 ) On July 8, 2009, this Court denied Petitioner's request. (Doc. No. 28.) Petitioner has now filed a Notice of Appeal ("NOA") regarding that decision. (Doc. No. 29.) The Court construes the NOA as a request for a Certificate of Appealability ("COA"). For the reasons discussed below, the Court DENIES the COA.
On April 16, 2008, Petitioner entered into a Plea Agreement with Respondent United States of America ("Respondent" or "Government") regarding Petitioner's arrest and charges for illegal entry into the United States. (Doc. No. 12 [hereinafter "Plea Agreement"]. In exchange for certain Government concessions, Petitioner agreed to waive any appeal or collateral attack of his conviction and sentence. (Plea Agreement 3--4.)
On April 28, 2008, consistent with the Government's recommendation and plea agreement, the Court sentenced Petitioner to a term of forty-eight months: twenty-four months in custody as to Count Two and Three to run consecutively, as well as six months' custody as to Count One, to run concurrently with Counts Two and Three, and one-year supervised release. (Doc. No. 21.) Petitioner does not claim that he made any objections at the time of sentencing.
On October 10, 2008, Petitioner filed a motion to reduce his sentence under 28 U.S.C. § 2255 and 18 U.S.C. §3582. (Doc. No. 22.) On October 27, 2008, the Court set a briefing schedule, giving the Government until January 22, 2009, to respond and Petitioner until March 9, 2009, to file his traverse. (Doc. No. 23.) On January 22, 2009, the Government filed their opposition. (Doc. No. 26.) And on February 27, 2009, Petitioner filed his traverse. (Doc. No. 27.)
On July 8, 2009, this Court denied Petitioner's motion in its entirety. (Doc. No. 28.) On July 27, 2009, Petitioner filed his NOA. (Doc. No. 29.)
Under the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214 (1996) ("AEDPA"), a state prisoner may not appeal the denial of a section 2254 habeas petition unless he obtains a COA from a district or circuit judge. 28 U.S.C. § 2253 (c)(1)(A); see also United States v. Asrar, 116 F.3d 1268, 1269-70 (9th Cir. 1997) (holding that district courts retain authority to issue COAs under the AEDPA).
In deciding whether to grant a COA, a court must either indicate the specific issues supporting a certificate or state reasons why a certificate is not warranted. Asrar, 116 F.3d at 1270. A court may issue a COA only if the applicant has made a "substantial showing" of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). The Supreme Court has elaborated on the meaning of this requirement:
Where a district court has rejected the constitutional claims on the merits, the showing required to satisfy section 2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong.
Slack v. McDaniel, 529 U.S. 473, 484 (2000) (emphasis added).
Petitioner argued that his sentence violates the Equal Protection clause, the Due Process clause and the "Equal Rights Act" because he, unlike a United States citizen, cannot take advantage of a drug program, a half- way house, or a job program. (Doc. No. 22 at 2.) Without commenting on the merits of the legal claims, this Court agreed with Respondent that Petitioner ...