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Uribe-Solis v. United States

September 10, 2009

JOSE MANUEL URIBE-SOLIS, PETITIONER,
v.
UNITED STATES OF AMERICA, RESPONDENT.



The opinion of the court was delivered by: Anthony W. Ishii Chief United States District Judge

ORDER DENYING PETITIONER'S REQUEST FOR CERTIFICATE OF APPEALABILITY AND MOTION FOR RECONSIDERATION

On May 18, 2004, the court entered an order denying Petitioner Jose Manuel Uribe-Solis' ("Petitioner") application for a writ of habeas corpus pursuant to 28 U.S.C. § 2255 that challenged Petitioner's conviction on the grounds of ineffective assistance of counsel.*fn1 In the May 18, 2004 order, the court held that Petitioner's trial counsel was not ineffective for failing to refute the factual assertion contained in Petitioner's Presentence Report that Petitioner "was a manager or supervisor in the present offense." The court also held that Petitioner's counsel was not ineffective for failing to investigate the validity of Petitioner's four prior convictions. The court also noted the benefits of the plea bargain conferred upon Petitioner, including a recommendation to reduce the overall sentence (for acceptance of responsibility), the dismissal of five other charged offenses, and a recommendation for a sentence in the low-end of the range.

On June 7, 2004, Petitioner filed a Request for a Certificate of Appealability, or in the Alternative for Reconsideration of the court's May 18, 2004 order.*fn2

I. Motion for Certificate of Appealability

Petitioner's Argument

Petitioner moved to vacate his sentence pursuant to 28 U.S.C. § 2255 based on the allegation that he suffered ineffective assistance of counsel because Petitioner's counsel failed to refute the factual assertion contained in Petitioner's Presentence Report that Petitioner "was a manager or supervisor in the present offense" and for failing to investigate the validity of Petitioner's four prior convictions (which were alleged and admitted at the time of sentencing). Petitioner asserts that "at least one, if not more of the alleged prior criminal acts admitted to by [Solis' Attorney] on behalf of [...] [Solis] are not valid convictions for purposes of determining his sentence."

Discussion

The controlling statute, 28 U.S.C. § 2253, provides as follows:

(a) In a habeas corpus proceeding or a proceeding under section 2255 before a district judge, the final order shall be subject to review, on appeal, by the court of appeals for the circuit in which the proceeding is held.

(b) There shall be no right of appeal from a final order in a proceeding to test the validity of a warrant to remove to another district or place for commitment or trial a person charged with a criminal offense against the United States, or to test the validity of such person's detention pending removal proceedings.

(c)(1) Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from--

(A) the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State court; or

(B) the final order in a proceeding under section 2255.

(2) A certificate of appealability may issue under paragraph (1) only if the applicant has made a substantial showing of the ...


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