Buckner v. United States of America

Filing 39

CERTIFICATE OF APPEALABILITY DENIED. Applicant has not made a substantial showing of the denial of a constitutional right; re 35 Notice of Appeal. Signed by Judge Frederick J Martone on 7/23/12. (Ninth Circuit #12-16280) (DMT)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Patrick T. Buckner,
Defendant-Movant,

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vs.

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United States of America,
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Plaintiff-Respondent.
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No. CV 10-01799-PHX-FJM
CR 01-01104-01-PHX-FJM
ORDER

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Petitioner filed a motion to vacate, set aside, or correct his sentence pursuant to 28

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U.S.C. § 2255, which this court denied. (Doc. 32). The Clerk entered judgment dismissing

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defendant's action with prejudice. (Doc. 34). Defendant did not request a certificate of

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appealability. After he appealed, the United States Court of Appeals for the Ninth Circuit

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remanded the case for the limited purpose of granting or denying a certificate of

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appealability.

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In defendant's § 2255 motion, he argued that his convictions were contrary to Skilling

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v. United States, 130 S. Ct. 2896 (2010) and that he was denied the effective assistance of

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counsel. Adopting the Report and Recommendation of the United States Magistrate Judge,

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this court denied his motion. Defendant procedurally defaulted on his claim that honest

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services fraud did not encompass his convictions after Skilling and he did not show prejudice

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or actual innocence. Any error in jury instructions was harmless because the jury was

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instructed on a valid theory of guilt and sufficient evidence was presented to sustain a

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conviction. Finally, the court denied relief based on two instances of purported ineffective

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assistance of counsel. The first issue was disposed of on a previous direct appeal and

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defendant failed to show prejudice resulting from counsel's actions under his second theory.

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An appeal from the final order in a proceeding under § 2255 may not be taken unless

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"the applicant has made a substantial showing of the denial of a constitutional right." 28

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U.S.C. § 2253(c)(2). For claims rejected on the merits, the "petitioner must demonstrate that

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reasonable jurists would find the district court's assessment of the constitutional claims

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debatable or wrong." Slack v. McDaniel, 529 U.S. 473, 484, 120 S. Ct. 1595, 1604 (2000).

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For claims denied on procedural grounds, a certificate of appealability "should issue when

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the prisoner shows, at least, that jurists of reason would find it debatable whether the petition

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states a valid claim of the denial of a constitutional right and that jurists of reason would find

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it debatable whether the district court was correct in its procedural ruling." Id. Petitioner has

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not met either standard.

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Petitioner has not made a substantial showing of the denial of a constitutional right.

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Therefore, pursuant to 28 U.S.C. § 2253(c), IT IS ORDERED DENYING a certificate of

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appealability.

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DATED this 23rd day of July, 2012.

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