Opinion
Civil No. 08-1153 (JAF), (Crim. No. 05-356).
April 14, 2009
ORDER
Petitioner Edwin Guante-Velázquez requests a certificate of appealability ("COA") from this court. Docket No. 20. On November 9, 2006, Petitioner pled guilty to conspiring to import and possess with the intent to distribute five kilograms or more of cocaine in violation of 21 U.S.C. §§ 841(a)(1), 846, 952(a), 963, and 18 U.S.C. § 2. Crim. No. 05-356, Docket Nos. 103, 159.
On February 4, 2008, Petitioner petitioned for relief under 28 U.S.C. § 2255, Docket No. 1; Respondent United States of America opposed on June 13, 2008, Docket No. 8. On August 7, 2008, we denied Petitioner's petition for his failure to present arguments relating to his claim for ineffective assistance of counsel.Docket No. 9.
On January 7, 2009, Petitioner moved for relief under Rule 60(b), arguing that he had indeed advanced arguments in support of his earlier petition. Docket No. 14. We denied his motion on January 12, 2009. Docket No. 15. On April 7, 2009, Petitioner filed the instant motion, seeking a COA to appeal our denial of his Rule 60(b) motion. Docket No. 20. To appeal a final order of the district court in § 2255 proceedings, a petitioner must first obtain a COA, 28 U.S.C. § 2253(c)(1)(B), which may issue from the district court, Grant-Chase v. Commissioner, 145 F.3d 431, 435 (1st Cir. 1998). We may grant a COA only upon "a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). The applicant "must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Miller-El v. Cockrell, 537 U.S. 322, 338 (2003) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). If granted, the COA "shall indicate which specific issue or issues satisfy the showing required" to warrant review by the court of appeals. 28 U.S.C. § 2253(c)(3).
Rule 60(b) provides relief from a final judgment, order or proceeding for, inter alia, "mistake, inadvertence, surprise or excusable neglect" within one year from the entry of the judgment. Fed.R.Civ.P. 60(b)(1), (c)(1). However, relief under Rule 60(b) can only be invoked in "special situations justifying extraordinary relief." Silk v. Sandoval, 435 F.2d 1266, 1268 (1st Cir. 1971).
In support of the instant challenge, Petitioner cites parts of the record in the prior criminal case to suggest an inadequacy of proof to sustain a conviction for a drug conspiracy in April 2005. Docket No. 20; see Docket Nos. 1, 14. Petitioner insists that the cited evidence could only support a conviction for accessory after the fact, and that his guilty plea was invalid as his counsel failed to fully apprise him of his options. Docket No. 20.
There are two fatal flaws in Petitioner's reasoning. Firstly, Petitioner does not argue that, but for his counsel's error, he would have insisted on going to trial instead of pleading guilty.See Hill v. Lockhart, 474 U.S. 52, 59 (1985).
Secondly, Petitioner's guilty plea forecloses his argument founded upon an alleged insufficiency of proof. As a general rule, guilty pleas pursuant to Rule 11 colloquies are presumptively knowing and voluntary. United States v. Sánchez-Barreto, 93 F.3d 17, 23 (1st Cir. 1996). Petitioner has presented no arguments to undermine this presumption. See Docket Nos. 1, 14, 20. As Petitioner cannot show that counsel's performance led to an uninformed or involuntary guilty plea, there is no ineffective assistance of counsel. See Strickland v. Washington, 466 U.S. 668, 686-96 (1984) (requiring showing of counsel's deficiency and resulting prejudice to claimant).
Therefore, we find that no reasonable jurist could disagree with our denial of extraordinary relief under Rule 60(b). See Miller-El, 537 U.S. at 338; see also Silk, 435 F.2d at 1268 (prescribing the standard for Rule 60(b) relief). Accordingly, we hereby DENY Petitioner's request for a certificate of appealability under 28 U.S.C. § 2253, Docket No. 20.