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MALDONADO v. UNITED STATES

April 4, 1997

EDWIN MALDONADO, Petitioner, against UNITED STATES OF AMERICA, Respondent.


The opinion of the court was delivered by: SPATT

 SPATT, District Judge.

 The petitioner Edwin Maldonado ("Maldonado" or the "petitioner") has applied for a Certificate of Appealability ("COA") from an Order of this Court dated February 15, 1997 denying his Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2255.

 I. BACKGROUND

 In December, 1990, following a seventeen week jury trial, Maldonado was found guilty of violating the criminal RICO statute, 18 U.S.C. § 1962, conspiracy to possess more than 1 kilogram of heroin in violation of 18 U.S.C. § 1952(a)(3) and failure to register a firearm as a member of the "Unknown Organization." On May 10, 1991, Maldonado was sentenced by this Court to a term of incarceration of 220 months, to be followed by a five year period of supervised release, and he was ordered to pay a special assessment in the sum of $ 200.00. The conviction was affirmed on appeal by the Court of Appeals for the Second Circuit.

 At the trial, the Government introduced evidence as to Maldonado's involvement in a conspiracy with regard to the transportation of guns for the massive drug organization known as the "Unknown Organization." Three gun dealers in Texas identified Maldonado as one of the purchasers of multiple firearms. There was also testimony from a Bureau of Alcohol, Tobacco and Firearms ("AFT") agent that Maldonado was observed purchasing guns in Texas. Sigfredo Pacheco, who was a co-conspirator of Maldonado and a Government witness, testified at the trial that he saw weapons in Maldonado's car and that he was told by Maldonado and Jerry Vega, who was a partner of Kingpin Ricardo Melendez, that Maldonado was transporting the weapons to New York. Joseph Ukperaj, who accompanied Maldonado on several trips, testified that he purchased weapons with Maldonado and delivered them to members of the "Unknown Organization." In addition, Juan Rivera, a major figure in the organization, and a witness cooperating with the Government, testified that one of Maldonado's jobs in the organization was to supply guns.

 During the trial Maldonado subpoenaed records from the DEA and the ATF, in New York and Dallas, in an effort to discover information regarding one Demir Deskaj. The records were reviewed by the Court in camera and were found to be devoid of information regarding Deskaj's whereabouts.

 A. Certificate of Appealability

 The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA" or the "Act") provides that in order to appeal a denial of a petition for a Writ of Habeas Corpus, a "circuit justice or judge" must issue a certificate of appealability. See 28 U.S.C. § 2253(c). Section 102 of the AEDPA, amending 28 U.S.C. § 2253 added, among other provisions, the following language:

 
(c)(1) Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from-
 
(A) the final order in a habeas corpus proceeding in which the detention complained of arises out of process issues by a State court; or
 
(B) the final order in a proceeding under section 2255.
 
(2) A certificate of appealability may issue under paragraph (1) only if the applicant has made a substantial showing of the denial of a constitutional right.
 
(3) The certificate of appealability under paragraph (1) shall indicate which specific issue or issues satisfy the showing required by paragraph (2).

 This amendment created a dispute as to whether a district court has the authority to issue a COA as a result of the ambiguity in the language Congress used in section 102 of the AEDPA to simultaneously amend both 28 U.S.C. § 2253 and Fed.R.App.P. 22. See Lozada v. United States, 107 F.3d 1011, 1997 WL 99719 (2d Cir. 1997). The confusion stems from the language "unless a circuit justice or judge issues a certificate of appealability." See 28 U.S.C. § 2253(c)(1) (as amended). The phrase could mean either "a circuit justice or a circuit judge" or "a circuit justice and either a circuit or district judge." Id. The issue is focused on the ...


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