Santana v. United States ( 1996 )

Opinions of the United
1996 Decisions States Court of Appeals
for the Third Circuit
11-14-1996
Santana v. United States
Precedential or Non-Precedential:
Docket 96-5276
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1996
Recommended Citation
"Santana v. United States" (1996). 1996 Decisions. Paper 53.
http://digitalcommons.law.villanova.edu/thirdcircuit_1996/53
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 1996 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
________________
96-5276
_________________
ERNESTO SANTANA
v.
UNITED STATES OF AMERICA
Ernesto Santana,
Appellant.
On Appeal from the United States District Court
For the District of New Jersey
D.C. Civ. No. 96-cv-00499
Submitted by the Clerk
for a certificate of appealability
pursuant to 28 U.S.C. § 2253(c)(1)
August 15, 1996
Before: BECKER, ALITO and MCKEE, Circuit Judges.
(Motions Panel A)
(Opinion Filed October 18, 1996)
Ernesto Santana, # 15992-050
Ray Brook FCI
P.O. Box 905
Ray Brook, N.Y. 12977
Appellant Pro Se
Kevin McNulty, Esquire
U.S. Attorney's Office
970 Broad Street
Newark, New Jersey 07101
Counsel for Appellee
ORDER AMENDING OPINION
The opinion in the above case is amended as follows:
In the penultimate paragraph of Section III, after the
parenthetical ("Congress . . . motion.") add a footnote signal,
and the footnote should read as follows:
We note that 18 U.S.C. § 3553 was amended to
add a "safety valve" provision that now
allows a district court to impose a guideline
sentence below the mandatory minimum if the
defendant meets certain criteria. The safety
valve exception, 18 U.S.C. § 3553(f), was
enacted as part of the Violent Crime Control
and Law Enforcement Act of 1994, Pub.L. 103-
322, 108 Stat. 1796. This section provides
no relief for petitioner, who pled guilty in
1992, as it applies only to sentences imposed
on or after September 23, 1994 and is not
retroactive. United States v. Torres, 1996
WL 626446 (10th Cir. Oct. 30, 1996)(citing
United States v. Rodriguez-Lopez, 63 F.3d
892, 893 (9th Cir. 1995) and United States v.
Lopez-Pineda, 55 F.3d 693, 697 n.3 (1st
Cir.), cert. denied, 116 S. Ct. 259 (1995)).
The last paragraph of Section III shall be connected to
the previous paragraph with an "And" making the "B" in because a
small character. Then a new paragraph will read as follows:
The Antiterrorism and Effective Death Penalty
Act requires that a certificate of
appealability be granted before an appeal of
the denial of a § 2255 petition may proceed.
28 U.S.C. § 2253(c)(1). 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). The Supreme Court in
Barefoot v. Estelle, 463 U.S. 880 (1983),
stated that under an unamended § 2253 a
certificate of probable cause should issue in
a § 2254 case only if the applicant had made
a "substantial showing of the denial of a
federal right." Id. at 893 n.4. It is
undecided whether Congress intended to change
the standard, along with the name, for
granting a certificate of appealability. We
note that in another part of the AEDPA
regarding granting stays of execution, the
drafters used "substantial showing of the
denial of a federal right." §2262(b)(3). We
further note that a writ of habeas corpus can
be granted if a person is held in violation
of the Constitution (i.e. constitutional
rights) or laws of the United States (i.e.
federal rights). 28 U.S.C. §§ 2241, 2254,
2255. We need not determine whether the
language of § 2253(c)(1) resulted from
imperfect draftsmanship or from an intent to
change the standard for granting a
certificate of appealability because
Santana's petition raises a constitutional
claim, that of ineffective assistance of
counsel. Since Santana has not made a
substantial showing of the denial of a
constitutional right, we deny the request for
a certificate of appealability.
BY THE COURT:
/s/ Edward R. Becker
Edward R. Becker
Circuit Judge
Dated: November 14, 1996