Zaragoza-Lopez v. USA, No. 2:2012cv00470 - Document 9 (D. Utah 2012)

Court Description: MEMORANDUM DECISION denying 8 Motion for Certificate of Appealability. Signed by Judge Ted Stewart on 09/11/2012. (tls)
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IN THE UNITED STATES COURT FOR THE DISTRICT OF UTAH CENTRAL DIVISION RODOLFO ZARAGOZA-LOPEZ, Petitioner, MEMORANDUM DECISION AND ORDER DENYING PETITIONER S MOTION FOR CERTIFICATE OF APPEALABILITY vs. UNITED STATES OF AMERICA, Civil Case No. 2:12-CV-470 TS Respondent. Criminal Case No. 2:11-CR-125 TS This matter is before the Court on Petitioner s Motion for Certificate of Appealability ( COA ). For the reasons stated below, the Court will deny the Motion. The Court has previously denied Petitioner s motion under 28 U.S.C. § 2255, his 59(e) motion, and his 60(b) motion. Petitioner now seeks a certificate of appealability. 28 U.S.C. § 2253(c)(1)(B) provides: Unless a circuit judge or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from . . . the final order in a proceeding under section 2255. A certificate of appealability may be issued only if the 1 applicant has made a substantial showing of the denial of a constitutional right. 1 To make this showing, Petitioner must demonstrate that 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. 2 The COA determination under § 2253(c) requires an overview of the claims in the habeas petition and a general assessment of their merits. 3 This threshold inquiry does not require full consideration of the factual or legal bases adduced in support of the claims. In fact, the statute forbids it. 4 While Petitioner is not required to prove the merits of his case, he must demonstrate something more than the absence of frivolity or the existence of mere good faith on his part.5 Considering this standard, as well as the issues raised in Petitioner s § 2255, 59(e), and 60(b) motions, the Court finds that Petitioner has failed to make a substantial showing of the denial of a constitutional right. 6 It is therefore ORDERED that Petitioner s Motion for Certificate of Appealability (Docket No. 8) is DENIED. 1 28 U.S.C. § 2253(c)(2). 2 Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (quotations omitted). 3 Id. at 336. 4 Id. 5 Id. at 338. 6 28 U.S.C. § 2253(c)(2). 2 DATED September 11, 2012. BY THE COURT: _____________________________________ TED STEWART United States District Judge 3