United States District Court, S.D. California
ORDER DENYING CERTIFICATE OF APPEAL ABILITY
THOMAS J. WHELAN UNITEA STATES DISTRICT JUDGE
On February 23, 2018, this Court denied Petitioner Gabriel
Rodriguez-Rodriguez's motion to vacate, set aside, or
correct his sentence pursuant to Title 28, United States
Code, Section 2255 (the “Petition” [Doc. 29]).
(See Order Denying Mt. to Vacate, Set Aside, or Correct
Sentence [Doc. 42].) On April 16, 2018, Petitioner
appealed the order and filed a motion for a certificate of
appealability (“COA”). (See Notice of Appeal
& Mt. for COA [Docs. 43, 44].) On May 3, 2018, the
Court of Appeal ordered this court to decide Petitioner's
motion. (See USCA Order [Doc. 46].) For the reasons
that follow, the Court DENIES Petitioner's request for a
about January 30, 2016, United States Border Patrol agents
arrested Petitioner, an alien previously removed from the
United States, for re-entering the United States in violation
of 18 U.S.C. § 1326. On February 25, 2016, Petitioner
agreed to waive indictment to an information charging him
with being a removed alien found in the United States in
violation of 18 U.S.C § 1326(a) and (b). (See
Complaint [Doc. 1]; Waiver of Indictment [Doc.
March 28, 2016, Petitioner plead guilty pursuant to a plea
agreement for being a removed alien found in the United
States in violation of 18 U.S.C. § 1326. (See Plea
Agreement [Doc. 14].) As part of the plea agreement,
Petitioner agreed to waive his right to appeal. (Id.
¶ XI.) On July 5, 2016, this Court sentenced Petitioner
to 37 months in custody followed by two years of supervised
release. (See Judgment [Doc. 22].)
appealed the sentence on October 12, 2016, contending that
his trial counsel failed to object to certain factors used to
determine his sentence, and failed to file a notice of appeal
pursuant to his request. (See Notice of Appeal [Doc.
23].) The Ninth Circuit dismissed the appeal as untimely.
(See 1/11/17 USCA Order [Doc. 27].)
March 14, 2017, Petitioner filed the Petition alleging
ineffective assistance of counsel. On June 6, 2017,
Respondent filed a motion for a limited waiver of the
attorney-client privilege for the purpose of responding to
the Petition. (See Mot. [Doc. 36].) On June 9, 2017,
the Court granted Respondent's motion as it found
Petitioner waived the attorney-client privilege with respect
to claims asserted in the Petition, ordered Petitioner's
trial counsel to provide a declaration addressing the claims,
and issued an amended briefing schedule on the Petition.
(See Waiver Order [Doc. 37].)
September 22, 2017, Respondent filed its opposition,
including Petitioner's trial counsel's declaration as
an exhibit. On October 16, 2017, Petitioner filed his reply.
On February 23, 2018, this Court denied the Petition.
Petitioner now requests a COA.
the Antiterrorism and Effective Death Penalty Act of 1996,
Pub. L. No. 104-132, 110 State. 1214 (1996)
(“AEDPA”), a federal prisoner may not appeal the
denial of a section 2255 habeas petition unless he obtains a
COA from a district or circuit judge. 28 U.S.C. § 2255
(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.
Asrar, 116 F.3d 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). To meet this standard, Petitioner
must show that: (1) the issues are debatable among jurists of
reason; (2) a court could resolve the issues in a different
manner; or (3) the questions are adequate to deserve
encouragement to proceed further. Lambright v.
Stewart, 220 F.3d 1022, 1024-25 (9th Cir. 2000) (citing
Slack v. McDaniel, 529 U.S. 473 (2000));
Barefoot v. Estelle, 463 U.S. 880 (1983). Petitioner
does not have to show “that he should prevail on the
merits. He has already failed in that endeavor.”
Lambright, 220 F.3d at 1025 (citation omitted).
moved to vacate, set aside, or correct his sentence on the
ground that his attorney provided ineffective assistance by:
(1) failing to review the plea agreement with Petitioner; (2)
failing to file an appeal; and, (3) failing to object to a 12
level sentencing enhancement for a previous state law drug
conviction and the validity of his deportation pursuant to
that conviction. (Pet. 5, 14.)
Strickland v. Washington, 466 U.S. 668 (1984), the
Supreme Court established a two-prong test to determine
whether counsel's assistance was so defective as to
require reversal of a conviction. First, petitioner must show
that counsel's performance was deficient. Id. at
687. In order to prove deficient performance, petitioner must
demonstrate that counsel “made errors so serious that
counsel was not functioning as the ‘counsel'
guaranteed the defendant by the Sixth Amendment.”
Id. In other words, petitioner must demonstrate that
counsel's representation fell below an objective
standard of reasonableness, considering all the circumstances
presented in a particular case. Id. at 688. The
Supreme Court further elaborated that there is a
“strong presumption that counsel's conduct falls
within the wide range of reasonable professional assistance.
. . .” Id. at 699.
second prong of the Strickland test requires
petitioner to prove that counsel's deficient performance
prejudiced the defense. Strickland, 466 U.S. at 687.
In order to prove prejudice, petitioner must demonstrate that
counsel's errors were so serious as to deprive the
defendant of a fair and reliable trial. Id.
Otherwise stated, the petitioner must demonstrate that there
is a reasonable probability ...