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United States v. Hernandez, 1080. (2019)

Court: District Court, N.D. California Number: infdco20190710746 Visitors: 8
Filed: Jul. 09, 2019
Latest Update: Jul. 09, 2019
Summary: ORDER DENYING CERTIFICATE OF APPEALABILITY EDWARD M. CHEN , District Judge . On June 3, 2019, the Court denied Petitioner Jairo Hernandez's 28 U.S.C. 2255 motion to vacate his sentence, finding that he had failed to establish his counsel provided ineffective assistance in his criminal proceedings. See Docket No. 1077. Mr. Hernandez now requests a certificate of appealability from this Court pursuant to 28 U.S.C. 2253(c). See Docket No. 1080. A court shall grant a certificate of appe
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ORDER DENYING CERTIFICATE OF APPEALABILITY

On June 3, 2019, the Court denied Petitioner Jairo Hernandez's 28 U.S.C. § 2255 motion to vacate his sentence, finding that he had failed to establish his counsel provided ineffective assistance in his criminal proceedings. See Docket No. 1077. Mr. Hernandez now requests a certificate of appealability from this Court pursuant to 28 U.S.C. § 2253(c). See Docket No. 1080. A court shall grant a certificate of appealability "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). Where, as here, "a district court has rejected the [applicant's] constitutional claims on the merits, the showing required to satisfy § 2253(c) is straightforward: [t]he petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Slack v. McDaniel, 529 U.S. 473, 484 (2000). Mr. Hernandez has not made such a showing. As discussed in the June 3, 2019 order, Mr. Hernandez's claims that his counsel failed to (1) provide him with discovery about his case, (2) inform him about the interstate commerce element of his RICO charge, and (3) present mitigating evidence at sentencing, are clearly belied by the record. See Docket No. 1077 at 3-9.

Accordingly, the request for a certificate of appealability is DENIED. The Clerk shall forward this order, the June 3, 2019 order, and the case file to the Ninth Circuit, from which Mr. Hernandez may also seek a certificate of appealability. See United States v. Asrar, 116 F.3d 1268, 1270 (9th Cir. 1997).

This order disposes of Docket No. 1080.

IT IS SO ORDERED.

Source:  Leagle

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