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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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Patrick T. Buckner, Defendant-Movant, 10 11 vs. 12 United States of America, 13 Plaintiff-Respondent. 14 ) ) ) ) ) ) ) ) ) ) ) ) No. CV 10-01799-PHX-FJM CR 01-01104-01-PHX-FJM ORDER 15 16 Petitioner filed a motion to vacate, set aside, or correct his sentence pursuant to 28 17 U.S.C. § 2255, which this court denied. (Doc. 32). The Clerk entered judgment dismissing 18 defendant's action with prejudice. (Doc. 34). Defendant did not request a certificate of 19 appealability. After he appealed, the United States Court of Appeals for the Ninth Circuit 20 remanded the case for the limited purpose of granting or denying a certificate of 21 appealability. 22 In defendant's § 2255 motion, he argued that his convictions were contrary to Skilling 23 v. United States, 130 S. Ct. 2896 (2010) and that he was denied the effective assistance of 24 counsel. Adopting the Report and Recommendation of the United States Magistrate Judge, 25 this court denied his motion. Defendant procedurally defaulted on his claim that honest 26 services fraud did not encompass his convictions after Skilling and he did not show prejudice 27 or actual innocence. Any error in jury instructions was harmless because the jury was 28 instructed on a valid theory of guilt and sufficient evidence was presented to sustain a 1 conviction. Finally, the court denied relief based on two instances of purported ineffective 2 assistance of counsel. The first issue was disposed of on a previous direct appeal and 3 defendant failed to show prejudice resulting from counsel's actions under his second theory. 4 An appeal from the final order in a proceeding under § 2255 may not be taken unless 5 "the applicant has made a substantial showing of the denial of a constitutional right." 28 6 U.S.C. § 2253(c)(2). For claims rejected on the merits, the "petitioner must demonstrate that 7 reasonable jurists would find the district court's assessment of the constitutional claims 8 debatable or wrong." Slack v. McDaniel, 529 U.S. 473, 484, 120 S. Ct. 1595, 1604 (2000). 9 For claims denied on procedural grounds, a certificate of appealability "should issue when 10 the prisoner shows, at least, that jurists of reason would find it debatable whether the petition 11 states a valid claim of the denial of a constitutional right and that jurists of reason would find 12 it debatable whether the district court was correct in its procedural ruling." Id. Petitioner has 13 not met either standard. 14 Petitioner has not made a substantial showing of the denial of a constitutional right. 15 Therefore, pursuant to 28 U.S.C. § 2253(c), IT IS ORDERED DENYING a certificate of 16 appealability. 17 DATED this 23rd day of July, 2012. 18 19 20 21 22 23 24 25 26 27 28 -2-

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