The opinion of the court was delivered by: Joe Billy McDADE United States District Judge
Before the court is the Motion for Certificate of Appealability filed by the petitioner, Robert A. Espinoza, on January 19, 2007 [Doc. 35]. For the reasons that follow, the motion is DENIED.
On December 20, 2006, the Clerk entered a judgment in this case pursuant to this Court's December 19, 2006 Order denying the petitioner's 28 U.S.C. §2255 motion to vacate, set aside, or correct his sentence. The petitioner filed a notice of appeal on January 19, 2007 in which petitioner's counsel appears to indicate that it is unclear to him whether the petitioner, himself, seeks to appeal the judgment. Pursuant to Federal Rule of Appellate Procedure 22(b)(1), this Court specifically declines to issue a certificate of appealability.
28 U.S.C. §2254(c)(2) provides that "a certificate of appealability may issue under paragraph (1) only if the applicant has made a substantial showing of the denial of a constitutional right." There has been no such showing in this case. As this Court pointed out in the Order on the §2255 motion:
Petitioner's claims offer no basis upon which this Court could find that his Counsel was ineffective. Petitioner offers nothing more than naked allegations and conclusory statements. Further, even if Petitioner had offered substantiated allegations, he has failed to show under any of his claims how he was prejudiced.
(December 19, 2006 Order at p. 11).
Thus, the petitioner has failed to show that "reasonable jurists could debate whether (or, for that matter, 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." Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (internal quotation marks and citations omitted). The petition failed to meet even the minimal requirements of Strickland v. Washington, 466 U.S. 668 (1984), and this Court sees no occasion to encourage the petitioner to proceed further.
Entered this 5th day of March, 2007
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