947 F. Supp. 1098 | W.D. Tex. | 1996
ORDER GRANTING MOTION FOR CERTIFICATE OF APPEALABILITY
The matter before the Court is petitioner’s motion for certificate of appealability, filed October 11, 1996.
The Antiterrorism and Effective Death Penalty Act of 1996
Petitioner identifies three issues which he intends to pursue on appeal from this Court’s judgment, i.e., petitioner’s claims the prosecution failed to turn over to defense counsel the transcript of a guilty plea hearing from a prior criminal proceeding against the petitioner, petitioner’s trial counsel rendered ineffective assistance by failing to investigate and present potential mitigating evidence, and the state trial court erred in denying petitioner’s requests for jury instructions on lesser-ineluded offenses at the guilt-innocence phase of trial. This Court rejected each of these arguments on the merits in the course of disposing of petitioner’s second amended federal habeas corpus petition and petitioner’s motion to alter or amend judgment. As explained above, however, the Standard for granting a certificate of appeal-ability is whether the petitioner has raised an issue which is debatable among jurists of reason, could have been resolved in a differ
For the reasons set forth at length in this Court’s Memorandum Opinion and Order issued August 27, 1996,
Accordingly, it is hereby ORDERED that petitioner’s motion for certificate of appeala-bility, filed October 11,1996,
. See docket entry no. 35.
. See Pub.L. No. 104-132, 110 Stat. 1214.
. See Reyes v. Keane, 90 F.3d 676, 680 (2nd Cir.1996); Lennox v. Evans, 87 F.3d 431, 434 (10th Cir.1996) (both holding the certificate of appealability required under the AEDPA is the successor to the old "certificate of probable cause” and the-standard for issuing both certificates is the same despite some change in the operative language between prior case law and the AEDPA). The Ninth Circuit, however, has reached a contrary conclusion. See Williams v. Calderon, 83 F.3d 281, 286 (9th Cir.1996) (holding the standard for granting a certificate of appealability is more demanding than that required for the issuance of the former certificate of probable cause).
. See Barefoot v. Estelle, 463 U.S. 880, 893, 103 S.Ct. 3383, 3394, 77 L.Ed.2d 1090 (1983); Washington v. Johnson, 90 F.3d 945, 949 (5th Cir. 1996); Newby v. Johnson, 81 F.3d 567, 569 (5th Cir.1996); Harris v. Johnson, 81 F.3d 535, 538 (5th Cir.), cert. denied, - U.S. -, 116 S.Ct. 1863, 134 L.Ed.2d 961 (1996); Jacobs v. Scott, 31 F.3d 1319, 1323 (5th Cir. 1994), cert. denied, — U.S. -, 115 S.Ct. 711, 130 L.Ed.2d 618 (1995); Drew v. Collins, 5 F.3d 93, 95 (5th Cir.1993), cert. denied, 510 U.S. 1171, 114 S.Ct. 1207, 127 L.Ed.2d 555 (1994); Sawyers v. Collins, 986 F.2d 1493, 1497 (5th Cir.), cert. denied, 508 U.S. 933, 113 S.Ct. 2405, 124 L.Ed.2d 300 (1993); Bridge v. Collins, 963 F.2d 767, 770 (5th Cir. 1992), cert. denied, 509 U.S. 925, 113 S.Ct. 3044, 125 L.Ed.2d 729 (1993); White v. Collins, 959 F.2d 1319, 1321-22 (5th Cir.), cert. denied, 503 U.S. 1001, 112 S.Ct. 1714, 118 L.Ed.2d 419 (1992); May v. Collins, 955 F.2d 299, 307 (5th Cir.), cert. denied, 504 U.S. 901, 112 S.Ct. 1925, 118 L.Ed.2d 533 (1992); Byrne v. Butler, 845 F.2d 501, 505 (5th Cir.1988).
. See Barefoot v. Estelle, 463 U.S. at 893 n. 4, 103 S.Ct. at 3394 n. 4; Washington v. Johnson, 90 F.3d at 949; Newby v. Johnson, 81 F.3d at 569; Harris v. Johnson, 81 F.3d at 538; Jacobs v. Scott, 31 F.3d at 1323; Drew v. Collins, 5 F.3d at 95; Sawyers v. Collins, 986 F.2d at 1497; White v. Collins, 959 F.2d at 1322; May v. Collins, 955 F.2d at 307; Byrne v. Butler, 845 F.2d at 505.
. Id.
. See docket entry no. 31.
. See docket entry no. 34.
. As explained in this Court’s Memorandum Opinion and Order, the petitioner ánd his mother were each fully aware that he had entered a guilty plea in the previous criminal proceeding and of the circumstances under which the state district court had accepted that plea. See United States v. Aubin, 87 F.3d 141, 148 (5th Cir.1996) (holding defendant must show the information was unavailable to him despite the exercise of due diligence and that Brady does not require the prosecution to conduct a defendant’s investigation or to assist in the presentation of the defense’s case). Petitioner has alleged no facts showing that the prosecution actually withheld any information from the defense which was otherwise unavailable to the defendant. On the contrary, the petitioner had personal knowledge of the very facts which petitioner now claims were withheld from defense counsel.
.See docket entry no. 35.