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Pastor Parafan-Homen v. United States

December 14, 2012

PASTOR PARAFAN-HOMEN,
PETITIONER,
v.
UNITED STATES, RESPONDENT.



The opinion of the court was delivered by: Platt, District Judge.

FILED

CLERK

12/14/2012 10:53 am

U.S. DISTRICT COURT EASTERN DISTRICT OF NEW YORK

LONG ISLAND OFFICE

MEMORANDUM AND ORDER

Before the Court is petitioner Pastor Parafan-Homen's motion for a Certificate of Appealability ("COA") from this Court's Order dated September 25, 2012 ("Order"), which denied petitioner's 28 U.S.C. § 2255 petition in its entirety. The Order also denied petitioner's request for a default or summary judgment as well as his request for an evidentiary hearing.

For the following reasons, petitioner's request for a COA is hereby DENIED. Legal Standard for a Certificate of Appealability Pursuant to 28 U.S.C. § 2253(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 issued by a State court; or

(B) the final order in a proceeding under section 2255.

Section 2253(c)(2) provides that 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." Section 2253(c)(3) provides that the "certificate of appealability under paragraph (1) shall indicate which specific issue or issues satisfy the showing required by paragraph (2)."

In sum, "to obtain a COA under § 2253(c), a habeas prisoner must make a substantial showing of the denial of a constitutional right, a demonstration that . . . includes showing 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.' " Slack v. McDaniel, 529 U.S. 473, 483-84 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 & n.4 (1983)). "Where a district court has rejected the constitutional claims on the merits, the showing required to satisfy § 2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Id. at 484.

Whether Petitioner Has Made a Substantial Showing of the Denial of a Constitutional Right Pastor-Homen's petition for a writ of habeas corpus was based on allegations that his Sixth Amendment right to effective assistance of counsel was violated during the entire prosecution of his criminal case. He now requests a COA on the grounds that the Court did not address three specific ineffective assistance of ...


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