Johnson v. Felker et al
Filing
22
ORDER signed by Chief Judge Robert H. Whaley on 5/7/2010 ORDERING that the 1 Petition for Writ of Habeas Corpus is DENIED; Court declines to issue a Certificate of Appealability. CASE CLOSED. (Waggoner, D)
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U N IT E D STATES DISTRICT COURT E A S T E R N DISTRICT OF CALIFORNIA Z A V IO N JOHNSON, P e titio ne r, v. T O M FELKER, WARDEN, HIGH D E S E R T STATE PRISON, S U S A N V ILLE , CALIFORNIA; E D M U N D G. BROWN, JR. A T T O R N E Y GENERAL OF THE S T A T E OF CALIFORNIA, Respondents. ORDER DENYING HABEAS P E T IT IO N
N O . CV-07-357-RHW
Before the Court is Petitioner's Petition for Writ of Habeas Corpus, 28 U .S .C . Section 2254 (Ct. Rec. 1). Petitioner is a state prisoner currently confined b y the California Department of Corrections at High Desert State Prison, Susanville, C a lifo rnia , and is proceeding pro se.1 P e titio n e r was convicted by a jury of the offenses of second degree murder (C a l. Penal Code § 187) and assault by means of force of a child in his care and c u s to d y , resulting in the death of a child under eight years old (Cal. Penal Code § 2 7 3 a b ). On January 17, 2003, Petitioner was sentenced to an indeterminate term of tw e n ty -fiv e years to life imprisonment.
A c c o rd in g to Petitioner, he is now incarcerated at Centinela State Prison,
Im p e ria l California (Ct. Rec. 17). O R D E R DENYING HABEAS PETITION ~ 1
1
P e titio n e r appealed his conviction and sentence. In his appeal, he asserted
2 tw o claims for relief: (1) the trial court committed reversible error by giving an 3 im p ro p e r "pinpoint" instruction; and (2) a sentence of 25 years to life was cruel and 4 u n u s u a l punishment as applied to Petitioner. The California Court of Appeal 5 a ffirm e d the judgment on September 24, 2004, in an unpublished opinion. 6 Petitioner petitioned for review to the California Supreme Court, which was 7 s u m m a rily denied on December 1, 2004. Petitioner's conviction became final on 8 M a rc h 1, 2005. 9 On December 5, 2005, Petitioner filed a Petition for Writ of Habeas Corpus
1 0 in the Superior Court of California, County of Sacramento. In his petition, he 1 1 a s s e rte d seven claims for relief: (1) he received ineffective assistance of trial 1 2 c o u n s e l; (2) there was insufficient evidence to support his conviction; (3) his 1 3 c o n v ic tio n was wrongful for numerous reasons; (4) he received ineffective 1 4 a s s is ta n c e of appellate counsel; (5) his expert testimony was deficient; (6) the trial 1 5 c o u rt erroneously gave CALJIC No. 2.03; and (7) his sentence is cruel and unusual. 1 6 The petition was denied on January 19, 2006. 17 Petitioner then filed a Petition for Writ of Habeas Corpus in the Court of
1 8 A p p e a l for the State of California. Again, he asserted seven claims for relief: (1) he 1 9 re c e iv e d ineffective assistance of trial counsel; (2) there was insufficient evidence 2 0 to support his conviction (actual innocence); (3) he received ineffective assistance 2 1 o f appellate counsel, client/attorney breakdown; (5) disproportionate sentence; 2 2 c o n flic t of interest, and numerous errors committed at trial; (6) the trial court 2 3 e rro n e o u s ly gave CALJIC No. 2.03; and (7) his sentence is cruel and unusual. This 2 4 p e titio n was summarily denied on March 9, 2006, without comment. 25 O n April 12, 2006, Petitioner filed a Petition for Writ of Habeas Corpus in
2 6 th e California Supreme Court. In his petition, he asserted seven claims for relief: 2 7 (1 ) ineffective assistance of trial and appellate counsel; (2) lack of sufficiency of the 2 8 e v id e n c e ; (3) denial of due process; (4) wrongful conviction; (5) disproportionate O R D E R DENYING HABEAS PETITION ~ 2
1 a n d illegal sentence; (6) wrong jury instructions; and (7) cruel and unusual 2 p u n is h m e n t and unfair punishment. The petition was summarily denied on 3 D e c e m b e r 13, 2006. 4 O n February 22, 2007, Petitioner filed his federal Petition for Writ of Habeas
5 C o rp u s presenting seven grounds for relief: (1) ineffective assistance of trial 6 c o u n s e l; (2) ineffective assistance of appointed appellate counsel; (3) insufficiency 7 o f the evidence; (4) illegal instructions given to the jury by the trial court; (5) illegal 8 s e n te n c e imposed in violation of the U.S. Constitution as factors used to sentence 9 P e titio n e r were determined by the court and not by the jury, in violation of 1 0 P e titio n e r's rights under Cunningham v. California; (6) cruel and unusual sentence 1 1 im p o s e d in violation of the U.S. Constitution; and (7) Petitioner is factually 1 2 in n o c e n t. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 F ACTS T h e California Court of Appeal summarized the facts as follows: D e fe n d a n t and Racquel Wynn started dating when he was a s e n io r in high school. Shortly after graduating, Wynn discovered she w a s pregnant. The child, whom they named Nadia, was born in July, 2 0 0 1 . Defendant and Wynn each lived with their parents. O n the Friday after Thanksgiving 2001, Wynn and Nadia spent th e night at the residence of defendant's mother. On Saturday m o rn in g , Wynn left for work shortly after 9:00 a.m. She told d e fe n d a n t Nadia was asleep on the bed; defendant replied that he m ig h t take Nadia to his great-grandmother's house to visit his cousin. L a te r that morning, defendant's younger sister checked on N a d ia . Defendant, who had just gotten out of the shower with Nadia, w a s dressing Nadia. The sister noticed Nadia was starting to fall a s le e p while Defendant dressed her, had "a raspy sound in her voice w h e n she was breathing," and seemed lifeless. Defendant denied k n o w in g why Nadia was acting this way. Defendant's mother checked N a d ia and also noticed her "raspy" breathing and a red mark on her lip ." Defendant explained that his younger brother had hit Nadia with a toy. In the early afternoon, defendant's great-grandmother and his c o u s in arrived to take defendant and Nadia to the great-grandmother's h o u s e for a visit. Since Nadia still appeared nonresponsive, they d e c id e d to stop at a clinic to have her examined. W h e n they were unable to find a clinic that was open, they c a lle d Wynn's father to ask for a ride to the hospital. While they were w a itin g , defendant called 911 and reported that Nadia was not b re a th in g normally. The 911 dispatcher sought to ascertain the source o f the problem; but defendant's responses merely described Nadia's p h y s ic a l symptoms. The dispatcher relayed instructions for mouth-toO R D E R DENYING HABEAS PETITION ~ 3
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m o u th resuscitation, which defendant attempted until the fire d e p a rtm e n t emergency medical personnel arrived at 3:20 p.m. The e m e rg e n c y medical personnel determined that Nadia was not breathing a n d had no pulse. They immediately established an airway to her lu n g s , gave her oxygen, and undertook cardiopulmonary resuscitation. The emergency medical personnel, who did not observe any external s ig n s of trauma, were unable to elicit much information from d e fe n d a n t, which they considered unusual. N a d ia was transported to the pediatric intensive care unit of a n e a rb y hospital. She was already extraordinarily cold; her brain was u n a b le to perform necessary functions; and bruises were apparent on h e r head, neck and abdomen. Defendant was questioned by Sacramento police officers at the h o s p ita l. His only explanation for four-month-old Nadia's injuries was h is assumption that his one-year-old brother had hit Nadia with a toy. E a rly Sunday morning, defendant told Wynn that after the toy in c id e n t he had accidentally dropped Nadia while he was taking a s h o w e r with her and that she had hit her head on the back of the b a th tu b . Wynn's father advised defendant to speak with an attorney " im m e d ia te ly " before telling anyone else what had happened, and d e fe n d a n t's mother agreed. O n Monday, November 26, 2001, Nadia was removed from life s u p p o rt and died. D r. Kevin Coulter, the Medical Director of the Child and A d o le s c e n t Abuse Referral and Evaluation Center at the University of C a lifo rn ia Davis Medical Center, testified that the cause of death was m u ltip le injuries to the head and brain as the result of being violently s h a k e n in additional to another impact trauma during or after the s h a k in g . He did not believe a fall of four feet would have accounted fo r Nadia's injuries. Dr. Coulter observed bruising of the tissues close to the skull that had resulted from a traumatic blow to the head, as well a s bruising under the skin on the back of Nadia's neck, which was c o n s is te n t with sustained choking. Nadia's skull was fractured with a fo rc e not normally seen from short falls. D r. Gregory Reiber, the forensic pathologist who performed the a u to p s y of Nadia, observed retinal hemorrhages and a widely d is p e rs e d subdural hematoma, which resulted from a rapid rotational m o v e m e n t of the head, as opposed to a simple fall. D r. Claudia Greco, a neuropathologist who examined Nadia's b ra in tissue with a microscope, observed damage to the brain stem and c e rv ic a l spinal cord, which could have been caused only by severe s h a k in g . D e fe n d a n t testified that his one-year-old brother struck Nadia in th e mouth with a toy on the Saturday after Thanksgiving. After b a th in g Nadia in the cast-iron bathtub, he accidentally dropped her a fte r she kicked her feet onto his chest and slipped out of his hands. Nadia fell about four feet and hit her head on the tub. Defendant did n o t tell his mother about the accident because he did not believe it was s e rio u s . Defendant testified that he answered all of the paramedics' q u e s tio n s , although he did not mention the fall. R ic h a rd Robertson, Ph.D, a biomechanical consultant who s p e c ia liz e s in the study of how much force is required to damage c e rta in parts of the body, testified that the injuries Nadia suffered were c o n s is te n t with, and could have been caused by the accident defendant d e s c rib e d . A d d itio n a l witnesses for the defense included defendant's sister, O R D E R DENYING HABEAS PETITION ~ 4
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h is counsel, the emergency medical personnel who responded to the 9 1 1 call, and individuals who testified that defendant was not violent a n d was a good caretaker of children. S TANDARD OF REVIEW In order to succeed with his § 2254 petition, Petitioner must establish that he
5 is in custody in violation of the Constitution or laws or treaties of the United States. 6 28 U.S.C. § 2254(a). Petitioner must also establish that his claims were adjudicated 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 o n the merits in state court proceedings and that the adjudication of the claim " re s ulte d in a decision that was contrary to, or involved an unreasonable application o f, clearly established Federal law, as determined by the Supreme Court of the U nite d States; or resulted in a decision that was based on an unreasonable d e te rmina tio n of the facts in light of the evidence presented in the State court p ro c e e d ing." § 2254(d). A determination of a factual issue made by the State court s ha ll be presumed to be correct. § 2254(e). Petitioner has the burden of rebutting the presumption of correctness by clear and convincing evidence. Id. A state court's decision is "contrary to" clearly established federal law only w he re "the state court arrives at a conclusion opposite to that reached by [the S up re me ] Court on a question of law or if the state court decides a case differently tha n [the Supreme] Court has on a set of materially indistinguishable facts." W illia m s v. Taylor, 529 U.S. 362, 412-24 (2000). There is an "unreasonable a p p lic a tio n" of clearly established federal law when a state court "correctly id e ntifie s the governing legal rule but applies it unreasonably to the facts of a p a rtic ula r prisoner's case." Id. at 407-08. A state court decision can also involve an unre a s o na b le application of clearly established precedent "if the state court either unre a s o na b ly extends a legal principle from [the Supreme Court's] precedent to a ne w context where it should not apply or unreasonably refuses to extend that p rinc ip le to a new context where it should apply." Id. at 407. The state court's e rro r must be one that the habeas court concludes is objectively unreasonable, not me re ly erroneous or incorrect. Id. at 409-11. O R D E R DENYING HABEAS PETITION ~ 5
1 2 1. 3 4 5 6 7 8 9
P ETITIONER'S CLAIMS I ne f f e c tiv e Assistance of Trial Counsel In claim one, Petitioner alleges that his trial counsel was ineffective for fa ilin g to (1) interview important witnesses; (2) research into the physical and m e d ic a l issues of the victim, including hereditary links to hemophilia; (3) research P e titio n e r's medical and mental history; and (4) retain appropriate medical experts. P e titio n e r presented these arguments in his habeas petitions before the state c o u rts . The Superior Court of California, County of Sacramento noted that P e titio n e r failed to identify the prospective witnesses, or explain how these
1 0 w itn e s s e s would have testified. It noted that Petitioner failed to present evidence to 1 1 s h o w that the victim's birth involved the use of forceps or any scientific evidence 1 2 th a t such use causes physical injury to children in general and to the victim in 1 3 p a rtic u la r. Likewise, Petitioner failed to present evidence of his alleged mental 1 4 s ta te and failed to show what effect any "mental state" evidence would have had on 1 5 th e trial, especially given the jury's reliance on the medical findings. Finally, 1 6 P e titio n e r failed to identify any other expert witness whose testimony would have 1 7 b e e n useful at his trial, and the court noted that counsel called Richard Robertson, a 1 8 b io m e c h a n ic a l consultant, who testified that the victim's injuries could have been 1 9 c a u s e d by the accident that Petitioner described. 20 To establish ineffective assistance of counsel, the petitioner must show (1)
2 1 tha t counsel's performance fell below an objective standard of performance, and (2) 2 2 tha t the ineffective performance prejudiced the petitioner. Strickland v. 2 3 W a s h in g to n , 466 U.S. 668, 687 (1984). 24 Petitioner has failed to overcome the presumption that counsel exercised
2 5 re a s o n a b le professional judgment. Moreover, Petitioner has failed to show a 2 6 re a s o n a b ly probability that, had counsel interviewed additional witnesses, 2 7 re s e a rc h e d medical issues and mental health issues, or retained appropriate expert 2 8 w itn e s s e s , the result of the proceeding would have been different. As such, the O R D E R DENYING HABEAS PETITION ~ 6
1 s ta te court's determination that Petitioner's counsel's performance was not 2 d e fic ie n t was not contrary to, or an unreasonable application of federal law. 3 2. 4 I ne f f e c tiv e Assistance of Appellate Counsel In claim two, Petitioner argues that his appellate counsel was ineffective. He
5 a s s e rts that a variety of very meritorious issues were not raised because of the lack 6 o f communication between Petitioner and his appointed appellate counsel. 7 Petitioner does not identify the meritorious issues that were not raised on appeal. 8 The failure to do so is fatal to Petitioner's claim because he must over come a 9 " s tro n g presumption" that appellate counsel's performance fell within the "wide 1 0 ra n g e of reasonable professional assistance." See Strickland, 466 U.S. at 689-90. 1 1 Likewise, Petitioner has not carried his burden of showing prejudice. The 1 2 S a c ra m e n to County Superior Court held that Petitioner failed to show that his 1 3 a p p e lla te counsel's decisions regarding his appeal were unreasonable in light of his 1 4 c o n v ic tio n . This determination was not contrary to, or an unreasonable application 1 5 o f federal law. 1 6 3. 17 I ns uf f ic ie nc y of the Evidence In claim three, Petitioner argues there was not sufficient evidence to convict
1 8 h im . Specifically, he argues that there was not sufficient evidence to show that the 1 9 d e a th was caused by "shaken baby" syndrome; nor was there sufficient evidence as 2 0 to the petitioner's willful actions. 21 T h e Sacramento County Superior Court rejected this claim, finding it was
2 2 p ro c e d u ra lly barred when Petitioner failed to raise it on appeal. 23 U n d e r the procedural bar doctrine, a federal court ordinarily will not review a
2 4 s ta te court ruling if the state court found that the claim was barred pursuant to an 2 5 in d e p e n d e n t and adequate state procedural rule. Robinson v. Schriro, 595 F.3d 2 6 1 0 8 6 , 1100 (9 th Cir. 2009). "A federal court will review the claim if Petitioner can 2 7 s h o w either cause and prejudice, a fundamental miscarriage of justice, or if the 2 8 G o v e rn m e n t waived the procedural default. Id., at 1100, n. 10 (citations omitted). O R D E R DENYING HABEAS PETITION ~ 7
1 T h e re are two types of procedural bars: express and implied. Id. at 1100. An 2 e x p re s s procedural bar occurs when the petitioner has presented his claim to the 3 s ta te courts and the state courts have relied on a state procedural rule to deny or 4 d is m is s the claim. Id. An implied procedural bar occurs when the petitioner has 5 fa ile d to fairly present his claims to the highest state court and would now be barred 6 b y a state procedural rule from doing so. 7 H e re , the state court expressly ruled that this particular claim was barred, and
8 th e state has not waived the default. Therefore, in order for the claim to survive, 9 P e titio n e r must show either cause and prejudice, or that a fundamental miscarriage 1 0 o f justice would result if relief is not granted. Petitioner has not argued cause and 1 1 p re ju d ic e . In Schlup v. Delo, the Supreme Court held that a petitioner's otherwise1 2 b a rre d claims may be considered on the merits if his claim of actual innocence is 1 3 s u ffic ie n t to implicate a fundamental miscarriage of justice. 513 U.S. 298, 315 1 4 (1 9 9 5 ). "In order to pass through Schlup's gateway, and have an otherwise barred 1 5 c o n s titu tio n a l claim heard on the merits, a petitioner must show that, in light of all 1 6 th e evidence, including evidence not introduced at trial, it is more likely than not 1 7 th a t no reasonable juror would have found petitioner guilty beyond a reasonable 1 8 d o u b t. A petitioner need not show that he is `actually innocent' of the crime he was 1 9 c o n v ic te d of committing; instead, he must show that a court cannot have confidence 2 0 in the outcome of the trial." Majoy v. Roe, 296 F.3d 770, 776 (9 th Cir. 2002). To be 2 1 c re d ib le , "a gateway claim requires `new reliable evidencewhether it be 2 2 e x c u lp a to ry scientific evidence, trustworthy eyewitness accounts, or critical 2 3 p h y s ic a l evidencethat was not presented at trial." House v. Bell, 547 U.S. 518, 2 4 5 3 7 (2006). 25 P e titio n e r has failed to meet his burden. In claim seven, Petitioner makes a
2 6 fre e s ta n d in g claim of actual innocence. In that claim, Petitioner asserts that he is 2 7 in n o c e n t because the medical evidence relied on at his trial "has since been 2 8 s u b s ta n tia lly rejected in the medical/forensic field by the increasing and evolving O R D E R DENYING HABEAS PETITION ~ 8
1 le a rn in g and research in the area of shaken baby syndrome." As noted by the State, 2 P e titio n e r does not offer any actual evidence or explain what the new research 3 s h o w s or how it would apply to his case. This is fatal to Petitioner's claim of actual 4 in n o c e n c e . 5 4. 6 E r r one ous Jury Instruction In claim four, Petitioner asserts that the jury was erroneously instructed
7 b e c a u s e it was error to give a "pin point" instruction to the jury, forcing the jury to 8 fo c u s on the alleged misleading statement of Petitioner as proof of his guilt, as well 9 a s other instructions that were given in the cases. The instruction in question 1 0 instructs the jury that the defendant's deliberately false statements may be 1 1 c o n s id e re d as a circumstance tending to prove a consciousness of guilt. 12 T h e California Court of Appeal denied this claim on direct appeal, noting that
1 3 th e California Supreme Court has repeatedly rejected the claim that CALJIC No. 1 4 2 .0 3 is an impermissible pinpoint instruction. 15 Even if the instruction was incorrect under state law, this is not a basis for
1 6 h a b e a s relief. Estelle v. McGuire, 502 U.S. 62, 71 (1992). In order to be entitled to 1 7 h a b e a s relief, Petitioner must demonstrate that "the ailing instruction by itself so 1 8 in fe c te d the entire trial that the resulting conviction violates due process." Id. The 1 9 in s tru c tio n "`may not be judge in artificial isolation,' but must be considered in the 2 0 c o n te x t of the instructions as a whole and the trial record." Id. 21 Here, the jury instruction was properly given, and did not infuse the trial with
2 2 u n fa irn e s s as to deny due process of law. Turner v. Marshall, 63 F.3d 807, 819-20 2 3 (9 th Cir.1995), overruled in part on other grounds by Tolbert v. Page, 182 F.3d 677 2 4 (9 th Cir.1999) (en banc). Petitioner made several inconsistent statements 2 5 c o n c e rn in g the incident and related to the crime for which he was tried. 26 5. 27 S ixth Amendment violation - Cunningham v. California In claim five, Petitioner asserts that his sentence was imposed in violation of
2 8 th e U.S. Constitution as factors used to sentence Petitioner were determined by the O R D E R DENYING HABEAS PETITION ~ 9
1 c o u rt and not by the jury, in violation of Petitioner's rights under Cunningham v. 2 C a lifo rn ia . Specifically, Petitioner asserts that he sought a sentence of probation 3 th a t was denied by the trial court using factors set forth in the probation report.2 4 In Cunningham, the United States Supreme Court invalidated California's
5 D e te rm in a te Sentence Law to the extent it allows a trial court to consider at the time 6 o f sentencing certain aggravating factors that were not found by a jury to be true 7 b e y o n d a reasonable doubt, other than prior convictions. 549 U.S. 270, 293 (2007). 8 It follows that Cunningham does not apply where, as here, Petitioner is serving an 9 in d e te rm in a te sentence. 10 In this case, Petitioner was eligible to be considered for probation. The trial
1 1 c o u rt expressly stated that its decision had been guided by the factors set forth in 1 2 th e California rules and noted in particular the vulnerability of the four-month-old 1 3 v ic tim to deny probation. The denial of probation did not implicate Petitioner's 1 4 c o n s titu tio n a l rights. See United States v. Belgard, 894 F.2d 1092, 1100 (9 th Cir. 1 5 1 9 9 0 ) (holding that defendants do not have a constitutional right to probation). 1 6 Similarly, Petitioner does not have a constitutional right to have a jury find the facts 1 7 s u p p o rtin g the denial of probation. 18 6. 19 C r ue l and Unusual Sentence In claim six, Petitioner asserts that his sentence was cruel and unusual
2 0 b e c a u s e he was 20 years old at the time of his sentencing and he was sentenced to 2 1 2 5 years to life. 22 T h e California Court of Appeal rejected Petitioner's argument on direct
2 3 a p p e a l. It noted that Petitioner waived this claim by failing to raise it in the trial 2 4 c o u rt. It recounted that the jury found that Petitioner violently abused a helpless 2 5 fo u r-m o n th -o ld infant and then repeatedly failed to disclose the facts of the infant's 26 27 28
2
T h e State argues that this claim is barred by Teague v. Lane, 489 U.S. 288
(1 9 8 9 ). This argument is now foreclosed by Butler v. Curry, 528 F.3d 624 (9 th Cir. 2 0 0 8 ). O R D E R DENYING HABEAS PETITION ~ 10
1 in ju rie s . It noted that the victim posed no threat to defendant's well-being. 2 T h e Eighth Amendment protects against the infliction of "cruel and unusual
3 p u n is h m e n ts ." U.S. .Const. amend. VIII. "The Eighth Amendment does not 4 re q u ire strict proportionality between crime and sentence. Rather, it forbids only 5 e x tre m e sentences that are "grossly disproportionate" to the crime." Ewing v. 6 C a lifo rn ia , 538 U.S. 11, 23 (2003) (citation omitted). 7 In this case, Petitioner's relative youth is far outweighed by other factors
8 re la tin g to his conduct, including the vulnerability of the victim and the nature and 9 s c o p e of the injuries. The state court's conclusion that Petitioner's sentence was 1 0 n e ith e r cruel or unusual was not contrary to or an unreasonable application of 1 1 c le a rly established federal law. 1 2 7. 13 A c tua l Innocence In claim seven, Petitioner argues that he is innocent of the charges. The
1 4 U n ite d States Supreme Court has declined to recognize a freestanding innocence 1 5 c la im in a capital claim. House v. Bell, 547 U.S. 518, 555 (2006). Given that 1 6 P e titio n e r has failed to establish the gateway standard, he has failed to meet the 1 7 m o re stringent standard of the hypothetical freestanding claim. 18 19 C ERTIFICATE OF APPEALABILITY B e c a u s e this is the Court's final order in this matter, the December 1, 2009
2 0 a m e n d m e n ts to Rule 11(a) of the Federal Rules Governing Section 2254 Cases 2 1 re q u ire the Court to determine in this Order whether a certificate of appealability 2 2 s h o u ld issue. The Court finds additional briefing on this issue unnecessary. 23 T h e Antiterrorism and Effective Death Penalty Act of 1996 requires a habeas
2 4 p e titio n e r appealing the denial of a 28 U.S.C. § 2254 to obtain a certificate of 2 5 a p p e a la b ility . 28 U.S.C. § 2253(c). A court may issue a certificate of appealability 2 6 o n ly if the "applicant has made a substantial showing of the denial of a 2 7 c o n s titu tio n a l right." 28 U.S.C. § 2253(c)(2). A petitioner must show that 2 8 " re a s o n a b le jurists could debate whether . . . the petition should have been resolved O R D E R DENYING HABEAS PETITION ~ 11
1 in a different manner or that the issues presented were adequate to deserve 2 e n c o u ra g e m e n t to proceed further." Slack v. McDaniel, 529 U.S. 473, 484 (2000) 3 4 5 (in te rn a l quotations omitted). The decision to issue a certificate of appealability tu rn s not on the court's assessment of the applicant's chances for success on appeal, b u t whether the appeal would raise material and debatable questions. See Miller-El
6 v . Cockrell, 537 U.S. 322, 342 (2003). 7 T h e Court finds that Petitioner's claims do not justify the issuance of a
8 c e rtific a te of appealability. Petitioner has not made a substantial showing of the 9 d e n ia l of a constitutional right. 10 11 Accordingly, IT IS HEREBY ORDERED: 1. Petition under 28 U.S.C. 2254 for Writ of Habeas Corpus by a Person in
1 2 S ta te Custody (Ct. Rec. 1) is DENIED. 13 14 2. The Court declines to issue a Certificate of Appealability.
I T IS SO ORDERED. The District Court Executive is directed to enter this
1 5 O rd e r, forward copies to counsel and petitioner, and close the file. 16 17 18 19 20 21 22 23 24 25 26 27 28 O R D E R DENYING HABEAS PETITION ~ 12
C:\WINDOWS\Temp\n otes101AA1\den y.wpd
D A T E D this 7 th day of May, 2010.
s /R o b e r t H. Whaley ROBERT H. WHALEY United States District Judge
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