Riascos
United States v. Riascos
Opinion
Lead Opinion
MEMORANDUM
Abert Augusto Riascos appeals pro se the district court’s denial of his 28 U.S.C. § 2255 motion following our remand for an evidentiary hearing. See United States v. Riascos, No. 96-35298, 1998 WL 700338 (9th Cir. Sept. 22,1998).
Before addressing the merits, we sua sponte consider our jurisdiction over this appeal. Under the Antiterrorism and Death Penalty Act of 1996 (“AEDPA”), Pub.L. No. 104-132, 110 Stat. 1217, an appeal may not be taken by a court of appeals unless a certificate of appealability (“COA”) is first issued. See 28 U.S.C. § 2253 (c)(1)(B). Athough Riascos filed his original § 2255 prior to the effective date of the AEDPA, a COA must issue before this appeal can proceed. See United States v. Martin, 226 F.3d 1042, 1045 (9th Cir.2000) (citing Slack v. McDaniel, 529 U.S. 473 , 120 S.Ct. 1595 , 146 L.Ed.2d 542 , (2000)). We therefore construe Ríaseos’ Notice of Appeal as a request for a COA and conclude that he has made the requisite “substantial showing of the denial of a constitutional right” with respect to his claim that his trial counsel rendered ineffective assistance. See 28 U.S.C. § 2253 (c)(2); Martin, 226 F.3d at 1045-46 .