Santiago-Lugo v. United States of America

Filing 24

ORDER denying 23 Motion for Certificate of Appealability. Signed by Judge Jose A Fuste on 8/4/2011. (mrj)

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UNITED STATES DISTRICT COURT
DISTRICT OF PUERTO RICO
ISRAEL SANTIAGO-LUGO,

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Petitioner,

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v.

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Civil No. 11-1363 (JAF)
(Crim. No. 95-029-1)

UNITED STATES OF AMERICA,
Respondent.

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ORDER

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Petitioner, Israel Santiago-Lugo, requests a certificate of appeal (“COA”) from our denial

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of his petition for writ of coram nobis or, in the alternative, audita querela (Docket No. 1).

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(Docket No. 23.)

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Petitioner initially presented three claims for relief under these writs. (Docket No. 1.)

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We recharacterized two of Petitioner’s claims as seeking § 2255 relief and denied them as

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successive petitions filed without prior certification by the Court of Appeals, see § 2255(h).

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(Docket No. 11.) In accordance with Rule 11 of the Rules Governing § 2255 Proceedings,

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whenever we deny § 2255 relief we must concurrently determine whether to issue a COA. We

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grant a COA only upon “a substantial showing of the denial of a constitutional right.” 28

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U.S.C. § 2253(c)(2). To make this showing, “[t]he petitioner must demonstrate that reasonable

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jurists would find the district court’s assessment of the constitutional claims debatable or

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wrong.” Miller-El v. Cockrell, 537 U.S. 322, 338 (2003) (quoting Slack v. McDaniel, 529 U.S.

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473, 484 (2000)). Petitioner’s latest filing presents no argument that would lead us to believe

Civil No. 11-1363 (JAF)

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that our recharacterization of his claims was in error. Thus, we see no way in which a

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reasonable jurist could find our assessment of Petitioner’s constitutional claims debatable or

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wrong. Petitioner may request a COA directly from the First Circuit, pursuant to Rule of

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Appellate Procedure 22.

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Petitioner cannot receive a COA for our denial of his third claim, a challenge to criminal

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forfeiture. This challenge to forfeiture was considered as a request for writs of coram nobis and

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audita querela. (See Docket No. 11.) These common-law writs are available pursuant to the

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All Writs Act, 28 U.S.C. § 1651; claims properly brought under these writs are not governed

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by the restrictions of § 2255 and do not require the granting of a COA prior to appeal.

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For the foregoing reasons, we hereby DENY Petitioner’s motion for COA (Docket
No. 23).

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IT IS SO ORDERED.

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San Juan, Puerto Rico, this 4th day of August, 2011.

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s/José Antonio Fusté
JOSE ANTONIO FUSTE
United States District Judge