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holding the Shepard rule does not "seriously diminish the likelihood of an accurate conviction and therefore does not apply retroactively"
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EP-05-CA-0330-DB, EP-01-CR-1404-DB.
September 13, 2005
MEMORANDUM OPINION ORDER
Before the Court is Petitioner Alberto Caballero-Banda's ("Caballero") Motion to Vacate pursuant to 28 U.S.C. § 2255, filed on August 30, 2005. After review, the Court finds that Caballero's claims are time-barred and that he is not entitled to equitable tolling. Accordingly, the Court concludes that his Motion to Vacate should be denied in its entirety and this matter dismissed with prejudice.
I. BACKGROUND PROCEDURAL HISTORY A. Criminal cause no. EP-01-CR-1404-DB
On August 15, 2001, the Grand Jury sitting in El Paso, Texas returned a one-count Indictment against Caballero, charging him with Illegal Reentry, in violation of 8 U.S.C. § 1326. The Government timely filed a Notice of Intent to Seek Increased Statutory Penalty, pursuant to 8 U.S.C. § 1326(b)(2), based on Caballero's prior aggravated felony conviction. Caballero, deciding to forego trial, pleaded guilty to the Indictment on October 30, 2001. The Court accepted the plea on November 6, 2001 and set the matter for sentencing. The Court entered Judgment on January 9, 2002, sentencing Caballero to a 77-month term of imprisonment and a 3-year term of non-reporting supervised release. It additionally ordered Caballero to pay a $100 special assessment.
Caballero timely appealed, arguing that 8 U.S.C. § 1326 violates the Due Process Clause. Alternatively, he contended that the prior conviction used to increase his sentence is an element of a separate offense under 8 U.S.C. § 1326 and should therefore have been alleged in the Indictment. Because it was not included in the Indictment, he argued, his sentence thus exceeded the 2-year maximum term of imprisonment that may be imposed for that offense. Caballero acknowledged that the Supreme Court's holding in Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998) (" Almendarez-Torres"), foreclosed his arguments, but asserted that the Supreme Court's later holding in Apprendi v. New Jersey, 530 U.S. 466, 490 (2000) (" Apprendi"), had cast doubt on the continuing viability of Almendarez-Torres. He therefore sought to preserve his claim for review.
The Fifth Circuit Court of Appeals rejected his arguments and affirmed the judgment on June 19, 2002, stating that Apprendi had not overruled Almendarez-Torres, which held that: (1) the enhanced penalties in 8 U.S.C. § 1326(b) are sentencing provisions, rather than elements of a separate offense; and (2) the sentencing provisions of § 1326(b) do not violate due process. It further stated that, unless and until the Supreme Court itself chose to overrule its holding, the Court of Appeals was obliged to abide by Almendarez-Torres. The Supreme Court denied Caballero's petition for a writ of certiorari on September 17, 2002.
B. Caballero's Motion to Vacate pursuant to 28 U.S.C. § 2255
The Court has read Caballero's Motion to Vacate liberally, pursuant to Haines v. Kerner, 404 U.S. 519, 596 (1972). It understands him to re-urge the argument he presented on direct appeal, asserting that the Supreme Court's holding United States v. Booker, ___ U.S. ___, 125 S. Ct. 738 (Jan. 12, 2005) (" Booker"), invalidates the Court of Appeals' determination that, under Almendarez-Torres, the enhanced penalties in 8 U.S.C. § 1326(b) are sentencing provisions, rather than elements of a separate offense, and do not violate due process. The Court further understands Caballero to argue that the Supreme Court's decision in Shepard v. United States, ___ U.S. ___, 125 S. Ct. 1254 (Mar. 7, 2005) (" Shepard"), overruled Almendarez-Torres. The Court lastly understands Caballero that he is actually innocent of illegal re-entry. For the reasons discussed below, the Court concludes that his claims are untimely under the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA").
II. LEGAL STANDARD
After a defendant has been convicted and exhausted or waived any right to appeal, a court is normally "entitled to presume that [he] stands fairly and finally convicted." Accordingly, "relief under 28 U.S.C. §§ 2255 is reserved for transgressions of constitutional rights and for a narrow range of injuries that could not have been raised on direct appeal and would, if condoned, result in a complete miscarriage of justice." A criminal defendant seeking relief from his conviction or sentence in a Motion to Vacate pursuant to 28 U.S.C. § 2255 must therefore establish one of the following: (1) his sentence was imposed in violation of the Constitution or laws of the United States; (2) the sentencing court lacked jurisdiction to impose the sentence; (3) the sentence imposed exceeded the maximum authorized by law; or (4) the sentence is otherwise subject to collateral attack.
United States v. Willis, 273 F.3d 592, 595 (5th Cir. 2001) (citing United States v. Frady, 456 U.S. 152, 164, 102 S. Ct. 1584, 1592 (1982); United States v. Shaid, 937 F.2d 228, 231-31 (5th Cir. 1991)).
United States v. Gaudet, 81 F.3d 585, 589 (5th Cir. 1996) (internal quotations and citations omitted).
See United States v. Seyfert, 67 F.3d 544, 546 (5th Cir. 1995) (citations omitted).
Moreover, "when raising issues of jurisdictional or constitutional magnitude for the first time on collateral review, a defendant ordinarily must show both cause for his procedural default and actual prejudice resulting from the error." This cause-and-actual-prejudice standard is "significantly more rigorous than even the plain error standard applied on direct appeal." The procedural bar does not apply, however, to claims which could not have been raised on direct appeal, such as those alleging ineffective assistance of counsel.
Gaudet, 81 F.3d at 589.
Id.
III. RETROACTIVITY AND TIMELINESS UNDER THE ANTI-TERRORISM AND EFFECTIVE DEATH PENALTY ACT OF 1996
In addition to his claim alleging actual innocence, Caballero contends that he was sentenced in a manner that violates the holdings of Booker and Shepard. For the reasons discussed below, the Court concludes that neither Booker nor Shepard apply retroactively to already-final judgments and therefore Caballero's claims based on those cases are untimely under the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA").
A. Booker's holding
In Booker, the Supreme Court considered whether the Apprendi line of cases applied to the United States Sentencing Guidelines, and if so, what portions, if any, of the Sentencing Guidelines remained in effect. Booker reaffirmed the Supreme Court's earlier holding in Apprendi: "Any fact (other than that of a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt." Applying the principle that "the Sixth Amendment requires juries, not judges, to find facts relevant to sentencing," Booker excised the provision of the federal sentencing statute making it mandatory for district courts to apply the Sentencing Guidelines. While the district court must consider the Sentencing Guidelines, it may also tailor a defendant's sentence in light of the statutory concerns set forth in 18 U.S.C. § 3553(a) without running afoul of the Sixth Amendment. B. Shepard's holding
See United States v. Booker, ___ U.S. ___, ___, 125 S. Ct. 738, 747 n. 1 (2005) (stating the questions presented for review); see also Apprendi v. New Jersey, 530 U.S. 466 (2000).
Booker, ___ U.S. at ___, 125 S. Ct. at 748.
See Booker, ___ U.S. at ___, 125 S. Ct. at 748; see also 18 U.S.C. § 3553(b)(1).
See Booker, ___ U.S. at ___, 125 S. Ct. at 757; see also 18 U.S.C. § 3553(a).
Title 18 U.S.C. § 924, also known as the Armed Career Criminal Act ("the ACCA"), mandates a minimum 15-year prison sentence for anyone possessing a firearm after three prior convictions for serious drug offenses or violent felonies. Under the ACCA, burglary constitutes a violent felony only if the defendant commits the offense in a building or enclosed space ( i.e., "generic burglary") and does not extend to offenses committed in a boat or a vehicle. Taylor v. United States, 495 U.S. 575 (1990), sets forth the materials a district court may consider when determining whether a defendant's previous burglary conviction, after a jury trial, counts as a violent felony under the ACCA. The district judge must normally take a categorical approach, looking only to the fact of conviction and the statutory definition of the prior offense. However, in a narrow range of cases where the State defines burglary more broadly than the ACCA and the jury was actually required to find all the elements of generic burglary, the district judge may depart from the categorical approach by looking to the charging document and jury instructions. If the charging document and jury instructions show that the defendant was charged only with burglary of a building and that the jury necessarily had to find an entry of a building to convict, then the conviction qualifies as a predicate under the ACCA. Shepard concerns the limits Taylor places on the district court's inquiry when the defendant's prior conviction resulted from a guilty plea rather than a jury trial. Reginald Shepard ("Shepard") pleaded guilty to an Indictment charging him with being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). He had four prior convictions under a Massachusetts burglary statute that broadly defined the offense, extending it to entries into boats and cars, as well as buildings and other structures. In each action, the state complaint simply tracked the language of the statute. The complaints thus contained no detailed allegations regarding the manner in which Shepard committed the offense. He pleaded guilty in each case.
See Shepard v. United States, ___ U.S. ___, ___, 125 S. Ct. 1254, 1257 (Mar. 7, 2005).
See id. More specifically, "burglary" as listed in § 924(e)(2)(B)(ii) means the "unlawful or unprivileged entry into, or remaining in, a building or structure, with the intent to commit a crime." Taylor v. United States, 495 U.S. 575, 599 (1990).
See Shepard, ___ U.S. at ___, 125 S. Ct. at 1257-58.
See id., ___ U.S. at ___, 125 S. Ct. at 1258.
See Shepard, ___ U.S. at ___, 125 S. Ct. at 1257-58.
See id., ___ U.S. at ___, 125 S. Ct. at 1258.
See id., ___ U.S. at ___, 125 S. Ct. at 1257.
See id., ___ U.S. at ___, 125 S. Ct. at 1257.
See Shepard, ___ U.S. at ___, 125 S. Ct. at 1258.
See id.
At sentencing, the Government argued that Shepard's four Massachusetts burglary convictions rendered him subject to the Act's 15-year mandatory minimum term of imprisonment. The Government urged the district court to examine the police reports and applications for the issuance of a complaint associated with each offense in order to determine whether Shepard's convictions qualified as violent felonies under the Act. The district court refused, finding that Taylor forbade it from considering these materials. The district court further concluded that, under an investigation within the bounds of Taylor, none of Shepard's prior burglary convictions could be considered predicates for the mandatory minimum sentence.
See id.
See Shepard, ___ U.S. at ___, 125 S. Ct. at 1258.
See id.
See id.
On certiorari review, the Supreme Court noted that
In cases tried without a jury, the closest analogs to jury instructions would be a bench-trial judge's formal rulings of law and findings of fact, and in pleaded cases they would be the statement of the factual basis for the charge, shown by a transcript of plea colloquy or by written plea agreement presented to the court, or by a record of comparable findings of fact adopted by the defendant upon entering the plea. With such material in a pleaded case, a later court could generally tell whether the plea has "necessarily" rested on the fact identifying the burglary as generic, just as the details of instructions could support that conclusion in the jury case, or the details of a generically limited charging document would do in any sort of case.
Id., ___ U.S. at ___, 125 S. Ct. at 1259-60 (internal citations omitted).
Accordingly, the Shepard Court held that, in the context of a prior burglary conviction after a guilty plea, the district court's inquiry under the ACCA is limited as follows. To determine whether a defendant who pleaded guilty to violating a nongeneric burglary statute necessarily admitted elements of the generic offense, the district court may consider only: (1) the terms of the charging document; (2) the terms of a plea agreement or transcript of colloquy between the judge and the defendant, in which the defendant confirmed the factual basis for the plea; and (3) some comparable judicial record of this information. C. Retroactivity of new rules announced by the Supreme Court of the United States
See id., ___ U.S. at ___, 125 S. Ct. at 1263.
When a Supreme Court decision results in a new rule, that rule applies to all criminal cases still pending on direct review. The new rule applies in only limited circumstances, however, to convictions that are already final. New substantive rules generally apply retroactively to convictions that are already final. New substantive rules result from decisions narrowing the scope of a criminal statute by limiting its terms, or from constitutional determinations that place particular conduct or persons covered by the statute beyond the State's power to punish. "Such rules apply retroactively because they necessarily carry a significant risk that a defendant stands convicted of an act that the law does not make criminal or faces a punishment that the law cannot impose upon him."
Schriro v. Summerlin, 542 U.S. 348, ___, 124 S. Ct. 2519, 2522 (2004); Griffith v. Kentucky, 479 U.S. 314, 328 (1987).
Schriro, 542 U.S. at ___, 124 S. Ct. at 2522.
Id.
Id.
Id. at 2522-23 (internal quotations omitted).
In contrast, new procedural rules generally do not apply retroactively, because "[t]hey do not produce a class of persons convicted of conduct the law does not make criminal, but merely raise the possibility that someone convicted with use of the invalidated procedure might have been acquitted otherwise." Due to the more speculative connection between the invalidated procedure and innocence, only "a small set of watershed rules of criminal procedure" ( i.e., those implicating the fundamental fairness and accuracy of the criminal proceeding) are given retroactive effect. It is not enough that a new procedural rule is "fundamental in some abstract sense." Rather, the new rule must be one "without which the likelihood of an accurate conviction is seriously diminished." This class of rules is extremely narrow.
Schriro, 542 U.S. at ___, 124 S. Ct. at 2523.
Id.
Id. (internal quotation omitted).
Id. (internal quotation omitted).
Id.
A district judge may determine whether a new decision of the Supreme Court applies retroactively and thus whether a collateral attack pursuant to 28 U.S.C. § 2255 is timely under 28 U.S.C. § 2255 ¶ 6(3). C. Booker and Shepard represent new procedural rules that do not apply retroactively to cases on collateral review.
Ashley v. United States, 266 F.3d 671, 674 (7th Cir. 2001); see also Wiegand v. United States, 380 F.3d 890, 892-93 (6th Cir. 2004) (stating that the district court should decide retroactivity in a first instance); Dodd v. United States, 365 F.3d 1273, 1278 (11th Cir. 2004) ("Every circuit to consider this issue has held that a court other than the Supreme Court can make the retroactivity decision for purposes of § 2255 ¶ 6(3).").
Rules that regulate only the manner of determining a defendant's culpability are procedural. Judged by this standard, Booker's holding, which rests entirely on the Sixth Amendment's jury trial guarantee, is properly classified as procedural. The rule announced in Booker merely alters the range of permissible methods for determining whether a defendant's conduct is punishable, requiring a jury rather than a judge to find the essential facts bearing on punishment. "Rules that allocate decisionmaking authority in this fashion are prototypical procedural rules" and do not apply retroactively to convictions that are already final. Although "the right to jury trial is fundamental to our system of criminal procedure . . . it does not follow that, when a criminal defendant has had a full trial and one round of appeals in which the [Government] faithfully applied the Constitution as we understood it at that time, he may nevertheless continue to litigate his claims indefinitely in hopes that we will one day have a change of heart."
Schriro, 542 U.S. at ___, 124 S. Ct. at 2523; Bousley v. United States, 523 U.S. 614, 620 (1998).
See Schriro, 542 U.S. at ___, 124 S. Ct. at 2523.
Id.
Schriro, 542 U.S. at ___, 124 S. Ct. at 2523; see Guzman v. United States, No. 03-2446, ___ F. 3d ___, ___, 2005 WL 803214, *1, 2005 U.S. App. LEXIS 5700, *3 (2d. Cir. Apr. 8, 2005) (holding that Booker is not retroactive and does not apply to judgments that were final before Jan. 12, 2005); United States v. Price, 400 F.3d 844, 845 (10th Cir. 2005) (holding that Booker does not apply to initial habeas corpus petitions brought pursuant to 28 U.S.C. § 2255); Humphress v. United States, 398 F.3d 855, 856 (6th Cir. Feb. 25, 2005) (holding that Booker does not apply retroactively to cases already final on direct review); Varela v. United States, 400 F.3d 864, 868 (11th Cir. Feb. 17, 2005) (" Booker's constitutional rule falls squarely under the category of new rules of criminal procedure that do not apply retroactively to § 2255 cases on collateral review."); McReynolds v. United States, 397 F.3d 479 (7th Cir. Feb. 2, 2005) ("We conclude . . . that Booker does not apply retroactively to criminal cases that became final before its release on Jan. 12, 2005.").
Schriro, 542 U.S. at ___, 124 S. Ct. at 2526.
In sum, this Court, in keeping with every circuit court of appeals to decide the issue, concludes that Booker does not apply retroactively to cases on collateral review. The Court additionally finds that January 12, 2005, the date on which the Supreme Court decided Booker, rather than June 24, 2004, the date on which it decided Blakely, is the appropriate dividing line for determining whether a judgment may be attacked pursuant to the new rule. That is, petitioners whose judgments became final before January 12, 2005 may not claim relief pursuant to Booker.
See Lloyd v. United States, No. 04-cv-03687, ___ F.3d ___, ___, 2005 WL 1155220, 2005 U.S. App. LEXIS 8699 (3rd Cir. May 17, 2005); Guzman, ___ F. 3d ___, ___, 2005 WL 803214, at *1, 2005 U.S. App. LEXIS 5700, at *3; United States v. Price, 400 F.3d at 845; Humphress, 398 F.3d at 856; Varela, 400 F.3d at 868; McReynolds, 397 F.3d at 481.
In the words of Judge Easterbrook, " Blakely reserved decision about the status of the federal Sentencing Guidelines, so Booker itself represents the establishment of a new rule about the federal system." McReynolds, 397 F.3d at 481.
Similarly, the Court finds that the rule announced in Shepard is properly classified as procedural because it merely sets forth the materials a district court may consider in determining whether a defendant's prior convictions render him subject to the ACCA's mandatory minimum sentence. In this Court's view, Shepard's rule does not seriously diminish the likelihood of an accurate conviction and therefore does not apply retroactively to judgments that became final before that opinion's release on March 7, 2005. That is, the Court finds that petitioners whose judgments became final before March 7, 2005 may not claim relief pursuant to Shepard. D. Because the rules announced in Booker and Shepard do not apply retroactively to cases on collateral review, any claim Caballero wishes to raise based on Booker or Shepard or any other legal theory is time-barred.
In the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Congress established a one-year limitation period for filing a motion to vacate sentence pursuant to § 2255. The AEDPA added a specific period of limitation provision governing motions to vacate, set aside or correct sentences, which states:
A 1-year period of limitation shall apply to a motion under this section. The limitation period shall run from the latest of —
(1) the date on which the judgment of conviction becomes final;
(2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action;
(3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.
28 U.S.C.A. § 2255 ¶ 6 (West Supp. 2004).
The AEDPA thus describes four different events which could trigger the limitations period. Because this Court has determined that the rules announced in Booker and Shepard do not apply retroactively to convictions on collateral review, the relevant time, for purposes of Caballero's claim, is the date on which his Judgment became final.
See 28 U.S.C. § 2255 ¶ 6(1) (stating that the statute of limitations begins to run on the date that judgment becomes final); compare 28 U.S.C. § 2255 ¶ 6(3) (stating that the limitations period begins to run on the date that the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized and made retroactively applicable to cases on collateral review).
Here, Judgment became final on September 17, 2002, when the Supreme Court denied Caballero's petition for a writ of certiorari. Caballero therefore had until September 17, 2003 to file a Motion to Vacate pursuant to 28 U.S.C. § 2255. Caballero, however, could not have filed his Motion to Vacate any earlier than August 8, 2005, the date on which he signed it. His Motion to Vacate is thus untimely by nearly two years.
IV. EQUITABLE TOLLING A. Legal Standard
The AEDPA's one year statute of limitations is not jurisdictional and is thus subject to equitable tolling. Equitable tolling, however, is justified only in rare and exceptional circumstances. It is warranted only in situations where a petitioner is actively misled by the respondent or is prevented in some extraordinary way from asserting his rights. "The decision to invoke equitable tolling is left to the discretion of the district court" and reviewed only for an abuse of discretion.
See Cousin v. Lensing, 310 F.3d 843, 847-8 (5th Cir. 2002); Molo v. Johnson, 207 F.3d 773, 775 (5th Cir. 2000).
See Cousin, 310 F.3d at 848.
See Salinas v. Dretke, 354 F.3d 425, 429 (5th Cir. 2004), cert. denied, ___ U.S. ___, 124 S. Ct. 2099 (May 3, 2004).
Cousin, 310 F.3d at 848.
"Whether [a criminal defendant] had effective assistance on direct appeal in state court is not relevant to the question of tolling the AEDPA's statute of limitations. A criminal defendant has a right to effective assistance of counsel on a first appeal as of right. An alleged violation of that right does not toll the AEDPA's statute of limitations." "[M]ere attorney error or neglect is not an extraordinary circumstance such that equitable tolling is justified."
Molo, 207 F.3d at 775.
Cousin, 310 F.3d at 849.
Moreover, a petitioner's "claims of innocence do not preclude the dismissal of his petition as untimely." "A petitioner's claims of actual innocence are relevant to the timeliness of his petition if they justify equitable tolling of the limitations period. We have previously held that they do not." Similarly, a petitioner's ignorance or mistake is insufficient to warrant equitable tolling. B. Discussion
Id.
Id.
Id.
Here, Caballero appears to argue that he is entitled to equitable tolling because he does not speak English, is unschooled in the law, and is actually innocent. However, these are not sufficient grounds under the law of this Circuit to justify equitable tolling.
Alternatively, Caballero seems to argue that his Motion to Vacate is not untimely with respect to his Booker and Shepard claims because he filed his motion within one year of those opinions being released. Insofar as Caballero asserts that he could not previously file a claim based on Booker or Shepard, because those cases were not decided until recently, the Court finds his argument unavailing. As discussed above, this Court concludes that Booker and Shepard are not retroactive. Therefore, even if this Court were to find that it should equitably toll the statute because the basis for two of his claims was not available until after the one year limitations period expired, Caballero's claim would still be subject to summary dismissal. Any relief that Booker and Shepard might otherwise provide would not apply retroactively to his already final judgment.
The Court further finds that Caballero has failed to demonstrate that he relied to his detriment on any affirmative, but incorrect representation by the Court, or that any party obstructed his attempts to obtain habeas relief. The Court therefore concludes that Caballero has not shown, as it is his burden to do, that he is entitled to equitable tolling of the AEDPA's limitations period. The Court will accordingly dismiss his claims with prejudice as untimely.
See id.
V. CERTIFICATE OF APPEALABILITY
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") converted the "certificate of probable cause" ("CPC") required to appeal from the denial of a petition for federal habeas corpus relief, including the denial of § 2255 Motions to Vacate, into a Certificate of Appealability ("CoA"). To appeal the denial of a habeas corpus petition filed under 28 U.S.C. § 2255, the petitioner must obtain a CoA. Appellate review of a habeas petition is moreover limited to the issues on which a CoA is granted. In other words, a CoA is granted or denied on an issue-by-issue basis, thereby limiting appellate review to solely those issues on which CoA is granted.
See Hill v. Johnson, 114 F.3d 78, 80 (5th Cir. 1997) (recognizing that the "substantial showing" requirement for a CoA under the AEDPA is merely a change in nomenclature from the certificate of probable cause standard); Muniz v. Johnson, 114 F.3d 43, 45 (5th Cir. 1997) (holding that the standard for obtaining a CoA is the same as for a CPC); see also Robison v. Johnson, 151 F.3d 256, 259 n. 2 (5th Cir. 1998), cert. denied, 526 U.S. 1100 (1999) (stating that the CoA requirement supersedes the previous requirement for a certificate of probable cause to appeal for federal habeas corpus petitions filed after the effective date of the AEDPA); Hallmark v. Johnson, 118 F.3d 1073, 1076 (5th Cir. 1997), cert. denied sub nom. Monroe v. Johnson, 523 U.S. 1041 (1998) (same).
See Miller-El v. Johnson, 537 U.S. 322, 335-6 (2003); 28 U.S.C.A. § 2253(c)(2) (West Supp. 2003).
See Crutcher v. Cockrell, 301 F.3d 656, 658 n. 10 (5th Cir. 2002), (holding that a CoA is granted on an issue-by-issue basis, thereby limiting appellate review to those issues); Jones v. Cain, 227 F.3d 228, 230 n. 2 (5th Cir. 2000) (holding the same); Lackey v. Johnson, 116 F.3d 149, 151 (5th Cir. 1997) (holding that the scope of appellate review of denial of habeas petition is limited to issue on which CoA granted).
See Crutcher v. Cockrell, 301 F.3d at 658 n. 10; Lackey v. Johnson, 116 F.3d at 151; Hill v. Johnson, 114 F.3d at 80; Muniz v. Johnson, 114 F.3d at 45; Murphy v. Johnson, 110 F.3d 10, 11 n. 1 (5th Cir. 1997); 28 U.S.C.A. § 2253(c)(3) (West Supp. 2003).
A CoA to appeal the denial of a habeas corpus petition shall be granted only upon "a substantial showing of the denial of a constitutional right." The showing necessary to obtain a CoA on a particular claim depends upon the manner in which the District Court has disposed of a claim. If this Court rejects a prisoner's constitutional claim on the merits, he must then demonstrate that reasonable jurists could find the Court's assessment of the constitutional claim to be debatable or wrong. If the petitioner wishes to challenge this Court's dismissal of a claim for a reason not of constitutional dimension, such as procedural default, limitations, or lack of exhaustion, he must show that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and whether this Court was correct in its procedural ruling. This Court is authorized to address the propriety of granting a CoA sua sponte.
28 U.S.C. § 2253(c)(2); Miller-El v. Cockrell, 537 U.S. 322, 327 (2003).
Miller-El v. Johnson, 537 U.S. at 338.
Slack v. McDaniel, 529 U.S. 473, 484 (2000) (holding that when a district court denies a habeas claim on procedural grounds, without reaching the underlying constitutional claim, a CoA may issue only when the petitioner shows that reasonable jurists would find it debatable whether: (1) the claim is a valid assertion of the denial of a constitutional right; and (2) the district court's procedural ruling was correct).
Alexander v. Johnson, 211 F.3d 895, 898 (5th Cir. 2000).
After considering the entire record and Caballero's pleadings, the Court concludes that jurists of reason would not debate whether he has stated a valid claim for relief or whether a procedural ruling in this case is correct. Accordingly, the Court declines to issue a Certificate of Appealability regarding his claims for relief.
VI. CONCLUSION ORDER
In sum, the Court concludes that Petitioner Alberto Caballero-Banda's Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 should be denied and this matter dismissed with prejudice. The Court further finds that Petitioner is not entitled to a Certificate of Appealability. Accordingly,
1. Petitioner Alberto Caballero-Banda's Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255, filed on August 30, 2005, is DENIED and this matter is DISMISSED WITH PREJUDICE.
2. All pending motions in this cause, if any, are DENIED AS MOOT.
SO ORDERED.
FINAL JUDGMENT
On this day, the Court entered an Order denying Petitioner Alberto Caballero-Banda's Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255, filed on August 30, 2005. The Court further denied Petitioner a Certificate of Appealability regarding his claims. The Court now enters its Final Judgment pursuant to Rule 58 of the Federal Rules of Civil Procedure.Accordingly, IT IS ORDERED that Petitioner Alberto Caballero-Banda's Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255 is DENIED and this action is DISMISSED WITH PREJUDICE. IT IS FURTHER ORDERED that all other pending motions, if any, are DENIED AS MOOT.