Richardson v. USA

Filing 4

ORDER DENYING CERTIFICATE OF APPEALABILITY (SI, COURT STAFF) (Filed on 8/19/2011)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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UNITED STATES OF AMERICA,

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United States District Court
For the Northern District of California

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No. CR 09-0624 SI
No. C 10-5203 SI

Plaintiff,
ORDER DENYING CERTIFICATE OF
APPEALABILITY

v.
BRYAN KEITH RICHARDSON,
Defendant.

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Defendant filed notice of appeal of the judgment entered on July 6, 2011, denying his 28 U.S.C.

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§ 2255 motion. In his Section 2255 motion, defendant argued that if the Court had considered United

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States Sentencing Guideline 5G1.3, it should or would have sentenced him to have his state and federal

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sentences run concurrently. The Court enforced defendant’s plea agreement, in which he waived the

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right to appeal “any aspect” of his sentence or file “any collateral attack” on his sentence, except for a

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claim of ineffective assistance of counsel. The Court also noted that it would have denied defendant’s

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motion on the merits, because the Court, in imposing a consecutive sentence, exercised the discretion

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specifically permitted by the Guidelines.

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This case is not a case in which “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 it

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debatable whether the district court was correct in its procedural [rulings].” See Slack v. McDaniel, 529

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U.S. 473, 484 (2000); United States v. Zuno-Arce, 339 F.3d 886, 889 (9th Cir.2003). Thus, defendant

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has not made a substantial showing of denial of constitutional right. See 28 U.S.C. § 2253(c).

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Accordingly, the Court DENIES petitioner’s request for a certificate of appealability. (Docket

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No. 54). The denial of the certificate of appealability is without prejudice to petitioner seeking a

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certificate from the United States Court of Appeals for the Ninth Circuit. The clerk shall send a copy

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of this order to the United States Court of Appeal for inclusion in the case file.

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IT IS SO ORDERED.

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Dated: August 19, 2011
SUSAN ILLSTON
United States District Judge

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United States District Court
For the Northern District of California

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