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Lopez v. United States
September 16, 2009
GUILLERMO LOPEZ, PETITIONER,
UNITED STATES OF AMERICA, RESPONDENT
The opinion of the court was delivered by: Oliver W. Wanger United States District Judge
ORDER DENYING PETITIONER'S MOTION FOR CERTIFICATE OF APPEALABILITY
Petitioner Guillermo Lopez, proceeding in pro per, moves for a Certificate of Appealability regarding the denial of his motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255 by Memorandum Decisions and Orders filed on June 9, 2009 and July 14, 2009. Petitioner limits his motion to the claims described below.
Petitioner's motion is DENIED.
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 is not entitled to a Certificate of Appealability as to his claim that counsel was ineffective in his litigation of the motion to suppress. The Court ruled and the Ninth Circuit affirmed the denial of the motion to suppress as appropriate. Petitioner is not entitled to a Certificate of Appealability as to his claim that counsel was ineffective because of counsel's failure to interview and subpoena witnesses. Petitioner failed to provide affidavits from any of the individuals identified that any of them would have testified on Petitioner's behalf or what any of them would have testified to.
Petitioner is not entitled to a Certificate of Appealability as to his claim that counsel was ineffective by failing to investigate and raise the issue that a second search warrant for the search of Petitioner's residence was never issued. The record presented to the Court in response to this claim establishes that the search warrant for Petitioner's residence was in fact issued. 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.
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