United States District Court, D. Massachusetts
MEMORANDUM & ORDER
Nathaniel M. Gorton, United States District Judge.
July, 2019, this Court dismissed the habeas petition of Edgar
Acevedo (“Acevedo”). In September, 2019, the
First Circuit Court of Appeals directed this Court either to
issue or deny to issue a certificate of appealability for his
petition. For the following reasons, this Court will deny
such a certificate.
December, 2014, Acevedo pled guilty to conspiracy to commit
kidnapping in violation of 18 U.S.C. § 1201(c). This
Court sentenced Acevedo, departing downward from the
guidelines, to 192 months imprisonment, two years supervised
release and a $100 special assessment. Acevedo appealed his
sentence to the First Circuit Court of Appeals, contending
that this Court 1) failed to hold a hearing to resolve the
factual disputes raised by his objections to the Pre-Sentence
Report (“PSR”) at sentencing and 2) erred in
calculating his offense level. The First Circuit affirmed
Acevedo’s sentence in June, 2016. Acevedo appealed the
decision of the First Circuit to the United States Supreme
Court, which denied certiorari in October, 2016.
March, 2017, Acevedo filed a habeas petition pursuant to 28
U.S.C. § 2255 challenging his conviction. In his
petition, Acevedo alleged that 1) this Court failed to
resolve factual disputes in the PSR, 2) the offense
calculation was in error as a result, 3) the offense
calculation yielded an improper disparity between
Acevedo’s sentence and the sentences of his
co-conspirators and 4) Acevedo’s lawyer was ineffective
because she coerced him into pleading guilty and failed to
request an evidentiary hearing during sentencing.
July, 2019, this Court entered an order denying
Acevedo’s § 2255 habeas petition. Acevedo filed a
notice of appeal in September, 2019. On September 12, 2019,
the First Circuit requested that this Court promptly issue or
deny a certificate of appealability.
Certificate of Appealability
2253(c) of Title 28 of the United States Code provides that a
certificate of appealability may issue “only if the
applicant has made a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2). In
order to make a “substantial showing, ” a
petitioner seeking a certificate of appealability must
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.
Slack v. McDaniel, 529 U.S. 473, 484 (2000). To meet
the debatable-among-jurists-of-reason standard the petitioner
must prove “something more than the absence of
frivolity or the existence of mere good faith.”
Miller-El v. Cockrell, 537 U.S. 322, 338 (2003).
jurists would not debate whether Acevedo’s habeas
petition should have been decided differently.
preliminary matter, each of the claims in Acevedo’s
§ 2255 petition, except for his ineffective assistance
of counsel claim, is identical to claims already raised and
rejected by the First Circuit on direct appeal. Acevedo may
not use § 2255 proceedings as a mechanism to re-litigate
claims heard and disposed of on appeal absent some
intervening change in the law. See Davis v. United
States,417 U.S. 333, 342 (1974). Acevedo failed to
identify any intervening change in the law that would allow
him to relitigate his claims. Consequently, a reasonable