The opinion of the court was delivered by: Dean D. Pregerson United States District Judge
ORDER DENYING PETITION FOR CERTIFICATE OF APPEALABILITY
[Petition filed on October 17, 2008]
On March 24, 2004, Angel Pena ("Petitioner") began contacting and negotiating with a confidential informant ("CI") of the Drug Enforcement Agency. (Presentence Report ("PRS") ¶ 10.) On June 17, 2004, Petitioner informed the CI that he would be able to sell six pounds of methamphetamine at a later date on the condition that the CI would initially purchase only one pound of methamphetamine. (PSR ¶ 18.) Petitioner arrived at the designated meeting point; when the CI obtained the drugs, he notified the police, and Petitioner was arrested. Petitioner, a Mexican national, claims he was not informed of his right to notify the Mexican consulate of his detainment prior to the initiation of the adversarial process. (Pet'r Mem. 1.)
On July 2, 2004, a federal grand jury returned an indictment charging Petitioner and his co-defendants with conspiracy to possess methamphetamine with intent to distribute, in violation of 21 U.S.C. § 846 (2006), and possession of methamphetamine with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1) and (B)(1)(A) (2006). (Indictment 1.) Both charges involve the possession and distribution of "more than 50 grams of actual methamphetamine, a schedule II controlled substance." (Id. at 2.)
On September 28, 2005, Petitioner pleaded guilty to count one of the indictment: conspiracy to possess methamphetamine with intent to distribute. (Reporter's Transcript ("RT") 9/28/05 9:9-11.) The presiding judge, Judge W. Matthew Byrne, informed Petitioner that a violation of 21 U.S.C. § 846, which requires possession of more than 50 grams, carried a maximum sentence of life in prison and a minimum sentence of ten years imprisonment. (Id. at 16:12-15.) After presenting the maximum and minimum sentences, Judge Byrne asked whether Petitioner agreed that his crime involved the government-charged amount of 298.5 grams of methamphetamine. (Id. at 20:18-21.) Petitioner at first stated that he "didn't know about that," (id. at 21:2-3), referring to the amount of drugs seized, and several other times throughout the hearing denied possessing the charged amount. (Id. at 28:6-7). However, when Judge Byrne asked directly, "And the conspiracy related to 298 grams," Petitioner responded "Yes." (Id. at 21:21-24.)
In exchange for the guilty plea, the government dismissed count two of the indictment, "agreed to not file an enhancement charge from a prior felony", and "recommend[ed] a three level [sentence] departure for acceptance of responsibility." (Id. at 22:12-20.)
On direct appeal, the U.S. Court of Appeals for the Ninth Circuit held that Petitioner did in fact admit to the amount of the drugs involved, and that the district court was required to impose the statutory minimum sentence. United States v. Pena, No. 05-50013, 2007 WL 628-53, at *2 (9th Cir. Feb. 27, 2007). Petitioner's habeas petition argued that: (1) failure to provide consular notification violates the Vienna Convention on Consular Relations; (2) Petitioner was prejudiced by ineffective assistance of counsel; (3) the drug quantity involved, which increased the mandatory minimum sentence, was neither admitted nor proved beyond a reasonable doubt. (Order Den. Pet. 3.) On October 17, 2008, Petitioner filed for a Certificate of Appealability ("COA"). (Docket 14.)
There is no automatic right of appeal from a final order denying a habeas petition. 28 U.S.C. § 2253(b). Instead, a petitioner must first obtain leave to appeal by procuring a COA.
28 U.S.C. § 2253§(c)(1). "A COA will issue only if the requirements of § 2253 have been satisfied." Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). The requirements of § 2253 are met where the petitioner makes a "substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). This is demonstrated by a "showing that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner." Slack v. McDaniel, 529 U.S. 473, 484 (2000).
The inquiry whether to issue a COA requires an overview of the claims the petitioner brought in the habeas petition and a general assessment of their merits. Miller-El, 537 U.S. at 336. The petitioner is not required to show that the petition will be successful. Id. at 337. "It is consistent with § 2253 that a COA will issue in some instances where there is no certainty of ultimate relief." Id.
Petitioner provides no argument to support his request for a COA. Accordingly, the Court will independently review the ...