                                                                                                                           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Precedential or Non-Precedential: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




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Recommended Citation
"Santana v. United States" (1996). 1996 Decisions. Paper 53.
http://digitalcommons.law.villanova.edu/thirdcircuit_1996/53


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         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
