Conteh v. USA

Filing 6

ORDER granting a motion for certificate of appealability. Signed by Judge James L Graham on 12/30/2009. (bw)

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO EASTERN DIVISION ISSA B. CONTEH, Petitioner, v. UNITED STATES OF AMERICA, Respondent. OPINION AND ORDER On October 30, 2009, after an evidentiary hearing, final judgment was issued dismissing the instant motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. §2255. This matter is before the Court on petitioner's request for a certificate of CASE NO. 2:08-CV-119 CRIM. NO. 2:03-CR-140 JUDGE GRAHAM MAGISTRATE JUDGE KING

appealability. Doc. No. 214. For the reasons that follow, petitioner's request for a certificate of appealability, Doc. No. 214, is GRANTED. In the instant motion to vacate, set aside, or correct sentence, petitioner asserts that he was denied the effective assistance of counsel because his attorney failed to secure the services of an interpreter, and because his attorney failed to advise him to plead guilty. On June 5, 2009, the Court dismissed the former claim on the merits. Doc. No. 201. On October 30, 2009, after an evidentiary hearing, petitioner's sole remaining claim was likewise dismissed on the merits. Doc. No. 212. When a claim has been denied on the merits, a certificate of appealability may issue only if the petitioner "has made a substantial showing of the denial of a constitutional

right." 28 U.S.C. §2253(c)(2). This standard is a codification of Barefoot v. Estelle, 463 U.S. 880 (1983). Slack v. McDaniel, supra. To make a substantial showing of the denial of a constitutional right, a petitioner must show that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were " `adequate to deserve encouragement to proceed further.'" Barefoot, 463 U.S ., at 893, and n. 4.... Id. Upon review of the record, the Court concludes that reasonable jurists could debate whether petitioner's claims should have been resolved in a different manner. Therefore, petitioner's request for a certificate of appealability, Doc. No. 214, is GRANTED. The following issues are certified for appeal: 1. Was petitioner denied the effective assistance of counsel because his attorney failed to secure the services of an interpreter? 2. Was petitioner denied the effective assistance of counsel because his attorney failed to obtain or advise him regarding a guilty plea? IT IS SO ORDERED. S/ James L. Graham JAMES L. GRAHAM United States District Judge

2