The opinion of the court was delivered by: Hon. Thomas J. Whelan United States District Judge
ORDER DENYING CERTIFICATE OF APPEALABILITY [DOC. 29]
On September 24, 2009, Petitioner Carissa Noriega ("Petitioner"), a federal prisoner proceeding pro se, commenced a Section 2255 habeas corpus proceeding. On May 26, 2010, this Court issued an Order Denying Petition for Writ of Habeas Corpus (the "Order"). (Doc. 28.)
On June 11, 2010, Petitioner filed a notice of appeal. The Court construes the notice as request for a certificate of appealability ("COA").
The Court decides the matter on the papers submitted and without oral argument. See Civil Local Rule 7.1 (d.1). For the reasons stated below, the Court DENIES the COA.
On December 19, 2007, a federal grand jury indicted Petitioner. Count One of the indictment charged Petitioner with importation of 26.13 kilograms of cocaine, in violation of Title 21, United States Code, Sections 952 and 960, and Count Two charged her with possession of 26.13 kilograms of cocaine with intent to distribute, in violation of Title 21, United States Code, Section 841(a)(1). (Doc. 1.*fn1 ) On March 17, 2008, Petitioner pled guilty before this Court to Count One pursuant to a written Plea Agreement. (Doc. 15.) Under the terms of the agreement, Petitioner waived her right to appeal or to collaterally attack her conviction and sentence. (Id. at 7-8.)
On September 15, 2008, this Court imposed the mandatory minimum term of 120 months imprisonment after finding Petitioner was ineligible for a "safety valve" sentence reduction under USSG §§ 2D1.1(b)(6) and 5C1.2.
On September 24, 2009, Petitioner filed the motion pursuant to 28 U.S.C. § 2255 to Vacate, Set Aside or Correct Sentence (hereafter, "Petition"). Because in entering the Plea Agreement Petitioner waived the right to challenge her sentence, on May 26, 2010, this Court denied the Petition. Petitioner's request for a COA followed.
Under the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 State. 1214 (1996) ("AEDPA"), a state prisoner may not appeal the denial of a section 2254 habeas petition unless she 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 certificates of appealability 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. Id. 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). This requirement means that:
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 ... When the district court denies a habeas petition on procedural grounds without reaching the petitioner's underlying constitutional claim, a COA should issue when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.
Slack v. McDaniel, 529 U.S. 473, 484 (2000) ...