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Gonzalez v. United States

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


August 20, 2009

GLAFIRO GONZALEZ, PETITIONER,
v.
UNITED STATES OF AMERICA, RESPONDENT.

The opinion of the court was delivered by: Oliver W. Wanger United States District Judge

ORDER DECLINING TO ISSUE CERTIFICATE OF APPEALABILITY

Petitioner moves for a Certificate of Appealability in connection with his appeal from the denial of his motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255.

The standard for granting a certificate of appealability has been stated as follows: "Where a district court has rejected the constitutional claims on the merits . . . [t]he petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." United States v. Zuno-Arce, 339 F.3d 886, 888-89 (9th Cir. 2003) (quoting Slack v. McDaniel, 529 U.S. 473, 484, 146 L.Ed. 2d 542, 120 S.Ct. 1595 (2000)). Any doubts about whether a petitioner has met this standard must be resolved in his favor. Silva v. Woodford, 279 F.3d 825, 833 (9th Cir. 2002) (citing Slack, 529 U.S. at 483-84); see also Jefferson v. Welborn, 222 F.3d 286, 289 (7th Cir. 2000) (COA should issue unless petitioner's claims are "utterly without merit"). Petitioner contended that he was entitled to relief because:

(1) he was improperly sentenced under 21 U.S.C. § 841(b)(1)(A) for manufacture of methamphetamine, a Schedule II controlled substance, and should have been sentenced pursuant to 21 U.S.C. § 841(b)(1)(D), for a Schedule III controlled substance; (2) the 300 month sentence is illegal pursuant to Edwards v. United States, 523 U.S. 511 (1998); (3) his prior conviction by jury trial in the Tulare County Superior Court, Case No. 99-41887, on July 15, 1999, of transporting a controlled substance in violation of California Health & Safety Code § 11379(a), with a special allegation prohibiting probation for excess weight of methamphetamine, does not qualify as a prior predicate controlled substance offense for purposes of U.S.S.G. § 4B1.1 or for a mandatory term of imprisonment pursuant to 21 U.S.C. § 851; (4) Petitioner was not a member of the conspiracy, but was in a buyer-seller relationship; and (5) Petitioner was denied the effective assistance of trial and appellate counsel. All of these claims were denied on their merits.

The Court declines to issue a Certificate of Appealability.

Petitioner has not made a substantial showing of the denial of a constitutional right in any of the claims raised in Petitioner's Section 2255 motion. No issue debatable among jurists of reason is presented.

IT IS SO ORDERED.

20090820

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