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26 Order- 1

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT TACOMA

RODOLFO VELAZQUEZ,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

Case No. C06-5284RJB

ORDER DENYING CERTIFICATE

OF APPEALABILITY

This matter comes before the court on the petitioner’s Notice of Appeal. Dkt. 26. The court

must consider whether to grant or deny the petitioner a Certificate of Appealability. See 28 U.S.C.

2253(c)(3). The court has reviewed the record herein.

PROCEDURAL HISTORY

On May 8, 2003, petitioner was convicted of one count of conspiracy to distribute

methamphetamine and one count of possession of methamphetamine with intent to distribute. On

December 12, 2003, petitioner was sentenced for the drug crimes at issue, and a related case in

which he had entered a guilty plea to an indictment of illegally reentering the United States following

deportation. During the sentencing hearing, petitioner was sentenced to a mandatory 240-month

term of imprisonment on the drug charges and a concurrent 27-month term of imprisonment for the

immigration charge.

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26 Order- 2

Petitioner appealed his sentence as well as the terms of his supervised release. The Ninth

Circuit remanded the case for resentencing, finding that there was no evidentiary basis on which to

impose the special condition of his supervised release ordering him to abstain from the use of

alcohol. In addition, the Court of Appeals remanded for resentencing in light of United States v.

Booker, 543 U.S. 220n (2005), since the mandatory sentencing guideline scheme under which he had

been sentence had been ruled unconstitutional.

On December 9, 2005, petitioner was resentenced to the same sentence as had been

previously imposed, with the exception that the condition requiring that he abstain from the use of

alcohol was eliminated. 

On May 24, 2006, petitioner filed a motion to vacate, set aside or correct his sentence,

pursuant to 28 U.S.C. § 2255. Petitioner raised the following claims in his motion: 

Claim 1: Newly Discovered Evidence Demonstrates the [sic] Velazquez’s Conviction was a

Fundamental Miscarriage of Justice.

Claim 2: Trial Counsel’s Failure to Investigate the Availability and Call Sergio Munoz Munoz

as a Witness Constituted Ineffective Assistance of Counsel.

Dkt. 1. Petitioner was represented by counsel in these proceedings.

On October 27, 2006, the court granted petitioner’s motion for an evidentiary hearing. Dkt.

14. On February 23, 2007, following an evidentiary hearing, the court denied petitioner’s Section

2255 motion. Dkt. 22. Judgment was entered on February 26, 2007. Dkt. 23.

On March 28, 2007, petitioner filed an appeal with the U.S. Court of Appeals for the Ninth

Circuit. This court must determine whether to grant a Certificate of Appealability.

STANDARD FOR GRANTING A CERTIFICATE OF APPEALABILITY

The district court should grant an application for a Certificate of Appealability only if the

petitioner makes a “substantial showing of the denial of a constitutional right.” 28 U.S.C. §

2253(c)(3). To obtain a Certificate of Appealability under 28 U.S.C. § 2253(c), a habeas petitioner

must make a showing that reasonable jurists could debate whether, or agree that, the petition should

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26 Order- 3

have been resolved in a different manner or that the issues presented were adequate to deserve

encouragement to proceed further. Slack v. McDaniel, 120 S.Ct. 1595, 1603-04 (2000) (quoting

Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983)). When the court denies a claim on

procedural grounds, the petitioner 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 that jurists of reason would

find it debatable whether the district court was correct in its procedural ruling. Slack v. McDaniel,

120 S.Ct. at 1604. 

DISCUSSION

The court granted an evidentiary hearing and issued an oral ruling on the merits of

petitioner’s claims. The court concluded that the claims did not warrant relief under 42 U.S.C. §

2255. Petitioner has not shown that reasonable jurists could debate whether, or agree that, the

petition should have been resolved in a different manner or that the issues presented were adequate

to deserve encouragement to proceed further. The Certificate of Appealability should be denied.

Accordingly, it is hereby ORDERED that petitioner’s motion for a Certificate of

Appealability (Dkt. 26) is DENIED.

The Clerk is directed to send uncertified copies of this Order to all counsel of record and to 

any party appearing pro se at said party’s last known address.

DATED this 4th day of May, 2007.

AROBERT J. BRYAN

United States District Judge

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