Free Order - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8 9 10 11 12 Jose Luis Gonzalez-Alvarez, 13 Defendant/Movant. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 By Order entered October 19, 2005 (Dkt. #21), the Court denied Movant's § 2255 Motion on the basis that Movant voluntarily waived the right to challenge his sentence and to bring a collateral attack. Movant challenged the calculation of his criminal history points in his presentence report. Now, Movant has filed a notice of appeal (Dkt. #23), stating that the basis of his appeal is that counsel was ineffective by having him sign a plea agreement that he did not understand or could read. The filing of the notice of appeal raises the issue whether Movant should be granted a certificate of appealability. A certificate of appealability should not be granted unless the Movant has made a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2); Miller-El v. Cockrell, 537 U.S. 322, 336 (2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000). Reasonable jurists could not debate that Movant's claim was properly dismissed. The Court relied on Movant's statements in the plea transcript which indicated that Movant understood that he was waiving a future attack on his conviction and sentence. Movant does not
Case 2:04-cr-00017-MHM Document 24 Filed 11/28/2005 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

United States of America, Plaintiff, vs.

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No. CR 04-0017-PHX-MHM No. CV 05-1603-PHX-MHM (HCE) ORDER DENYING CERTIFICATE OF APPEALABILITY

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challenge this determination. Instead, his notice of appeal raises a claim of ineffective assistance of counsel that was not raised in his § 2255 motion. The Ninth Circuit has refused to address additional allegations of ineffective assistance of counsel that were not raised in a § 2255 motion to the district court. United States v. Keller, 902 F.2d 1391, 1395 (9th Cir. 1990). Consequently, the Court denies a certificate of appealability. IT IS THEREFORE ORDERED that the Movant is denied a certificate of appealability. DATED this 18th day of November, 2005.

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