Opinion
Submitted February 12, 2001. .
The panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2).
NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)
Defendant filed a postconviction motion to vacate. The United States District Court for the Western District of Washington, denied motion and the Court of Appeals remanded for an evidentiary hearing. On remand, the District Court for the Western District of Washington, Jack E. Tanner, J., denied motion, and defendant appealed. The Court of Appeals held that: (1) defendant's "Notice of Appeal," would be construed as a request for a certificate of appealability (COA), but (2) district court's credibility determinations and factual findings that defense counsel communicated plea offer to defendant were not clearly erroneous.
Affirmed.
Page 647.
Appeal from the United States District Court for the Western District of Washington, Jack E. Tanner, District Judge, Presiding.
Before LEAVY, THOMAS and RAWLINSON, Circuit Judges.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by 9th Cir. R. 36-3.
Albert Augusto Riascos appeals pro se the district court's denial of his 28 U.S.C. § 2255 motion following our remand for an evidentiary hearing. See United States v. Riascos, No. 96-35298, 1998 WL 700338 (9th Cir. Sept. 22, 1998).
Before addressing the merits, we sua sponte consider our jurisdiction over this appeal. Under the Antiterrorism and Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1217, an appeal may not be taken by a court of appeals unless a certificate of appealability ("COA") is first issued. See 28 U.S.C. § 2253(c)(1)(B). Although Riascos filed his original § 2255 prior to the effective date of the AEDPA, a COA must issue before this appeal can proceed. See United States v. Martin, 226 F.3d 1042, 1045 (9th Cir.2000) (citing Slack v. McDaniel, 529 U.S. 473, 120 S.Ct. 1595, 146 L.Ed.2d 542, (2000)). We therefore construe Riascos' Notice of Appeal as a request for a COA and conclude that he has made the requisite "substantial showing of the denial of a constitutional right" with respect to his claim that his trial counsel rendered ineffective assistance. See 28 U.S.C. § 2253(c)(2); Martin, 226 F.3d at 1045-46.
We conclude that Riascos has not made the requisite substantial showing of the denial of a constitutional right with respect to his claim that his appellate counsel rendered ineffective assistance, and deny the request for a certificate of appealability as to this claim. See 28 U.S.C. § 2253(c)(2).
Riascos contends that the district court erroneously found that he failed to show by a preponderance of the evidence that his trial counsel rendered ineffective assistance by failing to communicate a plea offer to him. We review both the district court's findings of fact and credibility determinations for clear error. See United States v. Matta-Ballesteros, 71 F.3d 754, 766 (9th Cir.1995). We cannot say on the record before us, that the district court's credibility determinations and factual findings that counsel communicated the offer to Riascos, were clearly erroneous. See id.
AFFIRMED.