Muhammad-Bey v. Haviland
Filing
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ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS; DENYING CERTIFICATE OF APPEALABILITY. Signed by Judge Thelton E. Henderson on 08/02/2012. (Attachments: # 1 Certificate/Proof of Service)(tmi, COURT STAFF) (Filed on 8/6/2012)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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JIHAD MUHAMMAD-BEY,
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Petitioner,
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United States District Court
For the Northern District of California
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No. C 10-0667 TEH (PR)
v.
ORDER DENYING PETITION FOR WRIT
OF HABEAS CORPUS; DENYING
CERTIFICATE OF APPEALABILITY
JOHN HAVILAND, Warden,
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Respondent.
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/
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Petitioner Jihad Muhammad-Bey aka Charles Anderson, a
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prisoner incarcerated at Solano State Prison in Vacaville,
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California, has filed a pro se petition for a writ of habeas corpus
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under 28 U.S.C. § 2254, which, for the reasons that follow, the
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Court denies.
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I
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On April 11, 2006, a jury convicted Petitioner of four
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counts of second degree robbery.
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179-181, 184-87.
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well as the allegation of infliction of great bodily injury.
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184-87.
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suffered eleven prior convictions.
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Transcript (RT) 12.
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indeterminate sentence of seventy-five years to life on the robbery
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convictions and a determinate term of twenty-five years on the
Ex. 1, Clerk’s Transcript (CT)
The jury found the weapon-use allegation true, as
CT
On April 12, 2006, the trial court found Petitioner had
Ex. 2, Vol. 7 Reporter’s
On July 31, 2006, the trial court imposed an
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sentence enhancements.
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the California Court of Appeal affirmed the judgment.
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November 14, 2007, the California Supreme Court denied review.
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7, 8.
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of habeas corpus in the San Francisco superior court.
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July 14, 2009, the superior court issued a two-page denial.
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Petitioner filed timely petitions for a writ of habeas corpus in the
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California Court of Appeal and the California Supreme Court.
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10, 12.
On August 27, 2007,
Ex. 6.
On
Ex.
On February 2, 2009, Petitioner filed a petition for a writ
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United States District Court
For the Northern District of California
CT 230-31; 7 RT 11-17.
Each court issued a one-sentence denial.
Ex. 9.
On
Ex. 9.
Exs.
Exs. 11, 13.
On February 17, 2010, Petitioner a filed a timely petition
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for a writ of habeas corpus in this Court.
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Court issued on Order to Show Cause, finding that Petitioner had
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stated claims of ineffective assistance of trial and appellate
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counsel based on failure to investigate and present evidence of his
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mental impairment and failure to challenge the constitutionality of
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his prior convictions used to enhance his sentence.
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answered and Petitioner has filed a traverse.1
On July 1, 2010, the
Respondent has
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1
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In his traverse, Petitioner attempts to assert an Equal
Protection claim based on discrimination due to his Moorish-American
heritage and a Fourth Amendment claim based on a warrantless search
of his living quarters in a homeless shelter. Because these claims
were raised for the first time in his traverse, Respondent does not
address them.
“A traverse is not the proper pleading to raise
additional claims for relief” on federal habeas review. Cacoperdo v.
Demosthenes, 37 F.3d 504, 507 (9th Cir. 1994). In order for the state
to be properly notified of additional claims, they should be presented
in an amended petition, to which the state can file an answer. Id.
Therefore, to the extent that Petitioner raises additional claims in
his traverse, the Court denies relief.
28
2
1
II
2
The statement of facts is taken from the briefs Petitioner
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and Respondent submitted on direct appeal to the California
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Appellate Court, exs. 3 and 4, and the trial transcript.
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3, 2005, at approximately 4:00 p.m., San Francisco police officer
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Mark Gamble, working in an off-duty position as a security guard at
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the Embarcadero Center in San Francisco, saw Petitioner leaning on a
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cement wall in the vicinity of ramps leading to and from the parking
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garage in Embarcadero Number 3.
3 RT 74.
On March
Because Petitioner was
United States District Court
For the Northern District of California
10
alone and appeared nervous and agitated, Officer Gamble decided to
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further observe him.
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Petitioner’s location, but when he arrived, Petitioner was gone.
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RT 76.
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observed him again near Clay Street, emerging from behind a pillar
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on the ramp of the garage.
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ski cap, a red, black and grey nylon jacket, black pants and white
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shoes.
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Petitioner, Petitioner immediately walked up to Officer Gamble.
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RT 77.
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and animated, and kept putting his hands in and out of his pocket.
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3 RT 77.
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from him and Petitioner complied.
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Gamble that he had been robbed the night before and someone had hit
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him with a knife.
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that he was waiting for someone, but Officer Gamble did not see
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anyone in the vicinity during his encounter with Petitioner.
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79.
3 RT 75.
Officer Gamble circled around to
3
Officer Gamble walked around searching for Petitioner and
3 RT 83.
3 RT 76.
Petitioner was wearing a black
When Officer Gamble made eye contact with
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This startled Officer Gamble because Petitioner was nervous
Officer Gamble asked Petitioner to stay a few feet away
3 RT 78.
3 RT 77.
Petitioner told Officer
Petitioner also told Officer Gamble
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3
3 RT
1
Officer Gamble contacted Officer Kevin Richins, also an
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officer with the San Francisco Police Department working off-duty as
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security for the Embarcadero complex.
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to the officers as Charles Anderson and that he was residing at a
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homeless shelter on Turk and Leavenworth Streets in San Francisco.
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3 RT 82.
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removed from his jacket pocket a large concrete rock with jagged
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edges, approximately four inches by six inches.
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Petitioner was not detained further.
Officer Richins did a pat-down search of Petitioner and
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United States District Court
For the Northern District of California
Petitioner identified himself
3 RT 84.
On March 5, 2005, at approximately 8:00 p.m., Ai Jing
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Huang was working as a parking attendant at a parking garage at 622
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Washington Street in San Francisco. 3 RT 95.
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noticed Petitioner walking down the ramp of the parking garage.
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RT 96, 98.
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jacket and black jeans.
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approximately three feet away from Huang, he pulled out a metal rod,
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about ten inches in length.
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up, Petitioner hit him twice with the metal rod.
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Petitioner said, “give me money,” and Huang pulled out approximately
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$200 from his pocket and gave it to Petitioner.
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Petitioner asked Huang for more money, Huang said it was all he had,
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and Petitioner hit him on the right forearm and on his left ribs
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with the metal rod.
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his chair.
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am going to kill you.”
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help, and Petitioner ran away.
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Officer David On of the San Francisco Police Department responded.
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Huang gave him a description of Petitioner.
Huang was alone and
3
Petitioner was wearing a black cap, a black and red silk
3 RT 99-100.
3 RT 101.
3 RT 103.
3 RT 103.
When Petitioner was
When Huang tried to stand
3 RT 102.
3 RT 102.
When
Huang got up and hit Petitioner with
Petitioner said, “I am going to kill you, I
3 RT 104.
Huang called out to someone for
3 RT 106.
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Huang called 911 and
Huang later identified
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Petitioner from a photo line-up.
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Petitioner at the preliminary hearing and at the trial.
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108.
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3 RT 117.
He later identified
3 RT 98,
On March 6, 2005, at approximately 7:30 p.m., Senait Gebre
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and Sendeku Kassie were working behind the counter at Zane’s Liquor
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Store at 246 Second Street in San Francisco when Petitioner entered
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the store wearing a black and red jacket, black pants and black
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shoes.
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retrieved a bottle of water.
4 RT 163-66.
Petitioner first went to the cooler and
When he went to the counter, he
United States District Court
For the Northern District of California
10
grabbed Kassie’s cordless phone and put it in his pocket, grabbed
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Kassie, dragged him from behind the counter and beat him on the head
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with a piece of metal four or five times, causing Kassie to fall to
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the ground.
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me the money.”
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the money at Petitioner.
4 RT 172.
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between $600 and $1,000.
They called the police and Gebre provided
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them with a description of Petitioner.
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identified Petitioner from a photo line-up, but she wrote that she
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was not “100% sure” of her identification.
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identified Petitioner at the preliminary hearing and the trial as
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the person who robbed her, but she stated that she was only 50% sure
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of her identification.
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person that robbed him from a photo line-up or at the preliminary
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hearing.
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4 RT 168-71.
4 RT 172.
Petitioner said, “give me the money, give
Gebre opened the cash register and threw
4 RT 182.
Gebre believed Petitioner took
4 RT 174.
Gebre later
4 RT 186.
She also
Kassie was unable to identify the
5 RT 13-14.
On March 9, 2005, at approximately 4:00 p.m., Jose Rimon
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was working at the parking garage at 600 Harrison Street in San
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Francisco as a valet and cashier.
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in a booth located at the bottom of the ramp that led in and out of
5 RT 29.
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Rimon was working alone
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the garage.
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said “give me the money.”
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and Petitioner removed a steel pipe, about two feet long, from
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behind his back.
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head and his body with the pipe.
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garage in her car shouted to Rimon to jump in her car, which he did.
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5 RT 35.
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Petitioner in the booth getting money from the drawer.
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Rimon remembered that Petitioner wore a black cap and a white tee-
5 RT 30.
Petitioner walked down the ramp to Rimon and
5 RT 32-33.
Rimon walked out of the booth
Petitioner then whacked Rimon on the
5 RT 33.
A woman leaving the
As they were driving away, Rimon looked back and saw
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United States District Court
For the Northern District of California
5 RT 31.
shirt.
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hearing and at the trial.
5 RT 36.
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5 RT 35-37.
Rimon identified Petitioner at the preliminary
5 RT 38.
Eduardo Romero, maintenance foreman of the 600 Harrison
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Street garage, was approaching his office, which was close to
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Rimon’s booth, when he heard sounds and saw Rimon bleeding from the
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head.
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Romero saw Petitioner taking money from the booth.
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Romero identified the robber as wearing a black beanie, a white
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shirt and black pants and he had a small goatee.
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Romero identified Petitioner in a photo line-up, 6 RT 339, and at
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the trial, 6 RT 321.
6 RT 315-17.
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Rimon told him that he was being robbed and
6 RT 317.
6 RT 319-20.
On March 11, 2005, Officer Shaughn Ryan of the San
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Francisco police department and other officers executed an arrest
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warrant for Petitioner at a shelter at 290 Turk Street in San
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Francisco.
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address and arrested him.
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3 RT 68.
They found Petitioner at the Turk Street
3 RT 68-69.
III
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Under the Antiterrorism and Effective Death Penalty Act of
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1996 (“AEDPA”), codified under 28 U.S.C. § 2254, a federal court may
6
1
not grant a writ of habeas corpus on any claim adjudicated on the
2
merits in state court unless the adjudication:
3
decision that was contrary to, or involved an unreasonable
4
application of, clearly established Federal law, as determined by
5
the Supreme Court of the United States; or (2) resulted in a
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decision that was based on an unreasonable determination of the
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facts in light of the evidence presented in the State court
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proceeding.”
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“(1) resulted in a
28 U.S.C. § 2254(d).
“Under the ‘contrary to’ clause, a federal habeas court
United States District Court
For the Northern District of California
10
may grant the writ if the state court arrives at a conclusion
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opposite to that reached by [the Supreme] Court on a question of law
12
or if the state court decides a case differently than [the] Court
13
has on a set of materially indistinguishable facts.”
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(Terry) v. Taylor, 529 U.S. 362, 412–13 (2000).
15
‘unreasonable application’ clause, a federal habeas court may grant
16
the writ if the state court identifies the correct governing legal
17
principle from [the] Court’s decisions but unreasonably applies that
18
principle to the facts of the prisoner’s case.”
Williams
“Under the
Id. at 413.
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“[A] federal habeas court may not issue the writ simply
20
because that court concludes in its independent judgment that the
21
relevant state-court decision applied clearly established federal
22
law erroneously or incorrectly.
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objectively unreasonable.”
24
(2003) (internal quotation marks and citation omitted).
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in conducting its analysis, the federal court must presume the
26
correctness of the state court’s factual findings, and the
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petitioner bears the burden of rebutting that presumption by clear
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and convincing evidence.
Rather, that application must be
Lockyer v. Andrade, 538 U.S. 63, 75-76
28 U.S.C. § 2254(e)(1).
7
Moreover,
1
The standard of review under AEDPA is somewhat different
2
where the state court gives no reasoned explanation of its decision
3
on a petitioner's federal claim.
4
record is the only means of deciding whether the state court's
5
decision was objectively reasonable.
6
F.3d 1190, 1197-98 (9th Cir. 2006);
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848, 853 (9th Cir. 2003).
8
federal court should conduct an “independent review of the record”
9
to determine whether the state court’s decision was an objectively
In such a case, a review of the
Plascencia v. Alameida, 467
Himes v. Thompson, 336 F.3d
When confronted with such a decision, a
United States District Court
For the Northern District of California
10
unreasonable application of clearly established federal law.
11
Plascencia, 467 F.3d at 1198; Himes, 336 F.3d at 853.
12
Here, the only reasoned decision was issued by the
13
California appellate court on direct appeal, which addressed the
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only claim Petitioner raised, whether his encounter with Officers
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Gamble and Richins constituted an improper search or seizure.
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state habeas courts, which were presented with the ineffective
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assistance of counsel claims that Petitioner raises here, did not
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issue a reasoned decision on them.
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an independent review of the record to determine whether the state
20
courts’ rejection of Petitioner’s claims was an objectively
21
unreasonable application of clearly established federal law.
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The
Therefore, this Court conducts
IV
A claim of ineffective assistance of counsel is cognizable
24
as a claim of denial of the Sixth Amendment right to counsel, which
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guarantees not only assistance, but effective assistance of counsel.
26
Strickland v. Washington, 466 U.S. 668, 686 (1984).
27
for judging any claim of ineffectiveness must be whether counsel's
28
conduct so undermined the proper functioning of the adversarial
8
The benchmark
1
process that the trial cannot be relied upon as having produced a
2
just result.
3
Id.
In order to prevail on an ineffectiveness of counsel
4
claim, a petitioner must establish two things.
5
petitioner must establish that counsel's performance was deficient,
6
i.e., that it fell below an "objective standard of reasonableness"
7
under prevailing professional norms.
8
petitioner must establish that he or she was prejudiced by counsel's
9
deficient performance.
United States District Court
For the Northern District of California
10
First, the
Id. at 687-88.
Second, the
Id. at 694.
To show that trial counsel's performance was deficient, a
11
petitioner must show that counsel made errors so serious that
12
counsel was not functioning as the "counsel" guaranteed by the Sixth
13
Amendment.
14
counsel could have done, but rather whether the choices made by
15
defense counsel were reasonable.
16
1170, 1173 (9th Cir. 1998).
17
performance must be highly deferential, and a court must indulge a
18
strong presumption that counsel's conduct falls within the wide
19
range of reasonable professional assistance.
20
at 689.
21
Id. at 687.
The relevant inquiry is not what defense
Babbitt v. Calderon, 151 F.3d
Judicial scrutiny of counsel's
Strickland, 466 U.S.
To establish prejudice, the petitioner must show that
22
counsel's errors were so serious as to deprive the petitioner of a
23
fair trial, a trial whose result is reliable.
24
at 688.
25
the petitioner need not show that the deficient conduct more likely
26
than not altered the outcome of the case; however, a simple showing
27
that the defense was impaired is also not sufficient.
28
The petitioner must show that there is a reasonable probability
Strickland, 466 U.S.
The test for prejudice is not outcome-determinative, i.e.,
9
Id. at 693.
1
that, but for counsel's unprofessional errors, the result of the
2
proceeding would have been different; a reasonable probability is a
3
probability sufficient to undermine confidence in the
4
outcome.
Id. at 694.
5
The Due Process Clause of the Fourteenth Amendment
6
guarantees a criminal defendant the effective assistance of counsel
7
on his first appeal as of right.
8
391-405 (1985).
9
counsel are reviewed according to the standard set out in
Evitts v. Lucey, 469 U.S. 387,
Claims of ineffective assistance of appellate
United States District Court
For the Northern District of California
10
Strickland.
11
Ryan, 628 F.3d 1102, 1106 (9th Cir. 2010).
12
must show that counsel’s performance was objectively unreasonable,
13
which in the appellate context requires the petitioner to
14
demonstrate that counsel acted unreasonably in failing to discover
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and brief a merit-worthy issue.
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628 F.3d at 1106.
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in this context means that the petitioner must demonstrate a
18
reasonable probability that, but for appellate counsel’s failure to
19
raise the issue, the petitioner would have prevailed in his appeal.
20
Smith, 528 U.S. at 285-86; Moormann, 628 F.3d at 1106.
21
important to note that appellate counsel does not have a
22
constitutional duty to raise every nonfrivolous issue requested by
23
defendant.
24
v. Stewart, 129 F.3d 1027, 1045 (9th Cir. 1997).
Smith v. Robbins, 528 U.S. 259, 285 (2000); Moormann v.
First, the petitioner
Smith, 528 U.S. at 285; Moormann,
Second, the petitioner must show prejudice, which
It is
Jones v. Barnes, 463 U.S. 745, 751-54 (1983); Gerlaugh
25
V. Investigation and Presentation of Mental Health Defense
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A. Trial Counsel
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Petitioner claims that counsel was ineffective for failing
to mount a credible diminished capacity defense due to the effects
10
1
of various psychotropic medications he was taking at the time the
2
crimes were committed.
3
a form for release of medical information to the office of the
4
public defender, that he signed on April 4, 2004.
5
an unsigned, undated, partially completed form from the public
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defender’s office which lists various medications and a diagnosis,
7
but the lines for the client’s name, address and other identifying
8
information are blank.
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denied because Petitioner has failed to show the viability of a
United States District Court
For the Northern District of California
10
In support of this claim, Petitioner submits
He also submits
Respondent argues that this claim must be
diminished capacity defense.
11
A defense attorney has a general duty to make reasonable
12
investigations or to make a reasonable decision that makes
13
particular investigations unnecessary.
14
Cullen v. Pinholster, 131 S. Ct. 1388, 1407 (2011).
15
counsel is not required to pursue every claim or defense, regardless
16
of its merit, viability, or realistic chance for success.
17
v. Mirzayance, 556 U.S. 111, 124 (2009).
18
19
Strickland, 466 U.S. at 691;
However,
Knowles
Diminished capacity, which was once a viable defense in
California, was abolished in 1982.
20
California Penal Code § 25, provides, in relevant part:
21
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(a) the defense of diminished capacity is hereby
abolished. In a criminal action . . . evidence concerning
an accused person’s intoxication, trauma, mental illness,
disease, or defect shall not be admissible to show or
negate capacity to form the particular purpose, intent,
motive, malice aforethought, knowledge, or other mental
state required for the commission of the crime charged.
25
. . .
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(c) Notwithstanding the foregoing, evidence of diminished
capacity or of a mental disorder may be considered by the
court only at the time of sentencing or other disposition
or commitment.
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23
27
28
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1
Therefore, at the time of Petitioner’s trial in 2006,
2
counsel could not have presented a defense that Petitioner was not
3
guilty due to diminished capacity from mental illness or disease.
4
Counsel’s performance cannot be found to be deficient because he
5
failed to put on an unavailable defense.
6
at 124.
7
See Mirzayance, 556 U.S.
At Petitioner’s sentencing hearing, he informed the trial
8
court that he took psychotropic medication, and that he was seeing a
9
therapist and a psychiatrist.
7 RT 8.
Also, at the hearing,
United States District Court
For the Northern District of California
10
Petitioner told the court that he did not fault his counsel for not
11
obtaining his medical records because “they just weren’t available
12
at the time.”
13
shelter where Petitioner lived to obtain his medical records, but he
14
was told that the records were destroyed after one year.
15
Counsel told the court that he was bringing Petitioner’s mental
16
health issue to the court’s attention “as just circumstance that
17
might cause the Court to show some leniency.”
18
responded, “And I have to say in looking at the record, it’s a
19
pretty significant record, and there are acts of violence,
20
considerable acts of violence.
21
exercise my discretion to strike those priors, I cannot.”
22
7 RT 9.
Counsel confirmed that he went to the
7 RT 10.
7 RT 10.
The court
Based on that, I don’t think I can
7 RT 11.
This dialogue illustrates two significant points.
First,
23
contrary to Petitioner’s claim, counsel did investigate and try to
24
obtain his mental health records.
25
his sentencing hearing.
26
did not investigate is not supported by the record.
27
28
Petitioner acknowledged this at
Therefore, Petitioner’s claim that counsel
Second, trial counsel introduced evidence of Petitioner’s
mental health at Petitioner’s sentencing hearing, as was proper
12
1
under California Penal Code § 25(c).
2
court considered his mental health issues, but based upon
3
Petitioner’s significant record of past convictions and his violent
4
conduct, the court did not strike any of Petitioner’s prior
5
convictions, which would have reduced his final sentence.
6
Therefore, Petitioner’s claim that counsel did not present mental
7
health evidence to the court is not supported by the record.
8
Because counsel’s performance was not deficient, the Court need not
9
address Strickland’s second prong regarding prejudice.
United States District Court
For the Northern District of California
10
In sentencing Petitioner, the
B. Appellate Counsel
11
Petitioner argues that appellate counsel was ineffective,
12
presumably for not raising this ineffective assistance of counsel
13
claim in his direct appeal.
14
Because trial counsel was not deficient in either investigating
15
Petitioner’s mental health or in presenting evidence about it, a
16
claim of ineffective assistance of trial counsel based this issue on
17
appeal would likely not have succeeded.
18
54 (appellate counsel does not have a constitutional duty to raise
19
every nonfrivolous issue).
20
the trial court’s denial of the motion to suppress the evidence
21
obtained during Petitioner’s encounter with Officers Gamble and
22
Richins.
23
statements about being robbed and being hit with a metal pipe.
24
9.
25
describing his own modus operandi in committing the charged
26
robberies.
27
Petitioner’s name and address, which later facilitated his arrest.
28
Given these incriminating statements, appellate counsel’s decision
Exs. 3, 5.
See Jones, 463 U.S. at 751-
Instead, appellate counsel focused on
During that encounter, Petitioner made
2 RT
These statements were incriminating because Petitioner was
Also, during this encounter, the officers obtained
13
1
to appeal from the trial court’s denial of the motion to suppress
2
was tactically sound.
3
Therefore, based upon an independent review of the record, the
4
Court finds that the state court’s denial of the claim of
5
ineffective assistance of trial and appellate counsel based on
6
Petitioner’s mental health was not an objectively unreasonable
7
application of clearly established federal law.
8
VI. Ineffective Assistance of Trial and Appellate Counsel Regarding
Sentencing
9
Petitioner contends his trial counsel was ineffective because
United States District Court
For the Northern District of California
10
he failed to conduct an adequate investigation into the
11
constitutionality of Petitioner’s 1989 prior convictions, which were
12
used to enhance his sentence.
Petitioner argues that these prior
13
convictions were unconstitutionally obtained because trial counsel
14
15
16
17
18
19
20
21
22
23
24
25
26
27
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in the 1989 case was also ineffective.
A petitioner generally may not attack the constitutionality of
a prior conviction used to enhance a later sentence.
"[O]nce a
state conviction is no longer open to direct or collateral attack in
its own right because the defendant failed to pursue those remedies
while they were available (or because the defendant did so
unsuccessfully), the conviction may be regarded as conclusively
valid.
If that conviction is later used to enhance a criminal
sentence, the defendant generally may not challenge the enhanced
sentence through a petition under § 2254 on the ground that the
prior conviction was unconstitutionally obtained."
Lackawanna
County Dist. Attorney v. Coss, 532 U.S. 394, 403-04 (2001)
(citations omitted).
On May 2, 1989, Petitioner received a fifteen
year sentence for the 1989 convictions.
14
CT at 139-I & J.
Given
1
this, Petitioner was not in custody at the time he was sentenced in
2
2006, and the 1989 convictions are no longer open to collateral
3
challenge in federal court.
4
The rule in California is the same.
The California Supreme
5
Court has held, “In a current prosecution for a noncapital offense,
6
the interest of judicial efficiency does not justify a rule of
7
criminal procedure requiring that trial courts entertain motions to
8
strike based upon the constitutional ground of ineffective
9
assistance of counsel.”
Garcia v. Superior Court, 14 Cal. 4th 953,
United States District Court
For the Northern District of California
10
966 (1997).
11
counsel could not have raised a challenge to the his 1989
12
convictions based on ineffective assistance of counsel in that case.
13
Therefore, at the time Petitioner was sentenced,
Counsel’s performance cannot be found to be deficient because
14
he failed to make an unmeritorious argument at Petitioner’s
15
sentencing.
16
For the reasons discussed above, appellate counsel was
17
under no obligation to raise a spurious claim of ineffective
18
assistance of counsel based on the unconstitutionality of
19
Petitioner’s 1989 convictions.
20
(winnowing out weak or frivolous issues is the duty of appellate
21
counsel).
22
failing to include in Petitioner’s appeal a claim of ineffective
23
assistance of trial counsel founded on counsel’s performance at
24
Petitioner’s sentencing.
25
See Jones, 463 U.S. at 751-52
Therefore, appellate counsel was not deficient for
Based upon an independent review of the record, the Court
26
finds that the state court’s denial of the claim of ineffective
27
assistance of trial and appellate counsel regarding Petitioner’s
28
15
1
sentencing was not an objectively unreasonable application of
2
clearly established federal law.
3
VII
For the foregoing reasons, the Petition for a Writ of
4
Habeas Corpus is DENIED.
5
Further, a Certificate of Appealability is DENIED.
See
6
Rule 11(a) of the Rules Governing Section 2254 Cases.
Petitioner
7
has not made “a substantial showing of the denial of a
8
constitutional right.”
28 U.S.C. § 2253(c)(2).
Nor has Petitioner
9
demonstrated that “reasonable jurists would find the district
United States District Court
For the Northern District of California
10
court’s assessment of the constitutional claims debatable or wrong.”
11
Slack v. McDaniel, 529 U.S. 473, 484 (2000).
Petitioner may not
12
appeal the denial of a Certificate of Appealability in this Court
13
but may seek a certificate from the Court of Appeals under Rule 22
14
15
16
of the Federal Rules of Appellate Procedure.
Rules Governing Section 2254 Cases.
The Clerk is directed to enter Judgment in favor of
17
18
19
See Rule 11(a) of the
Respondent and against Petitioner, terminate any pending motions as
moot and close the file.
IT IS SO ORDERED.
20
21
22
DATED
08/02/2012
THELTON E. HENDERSON
United States District Judge
23
24
25
26
G:\PRO-SE\TEH\HC.10\Bey-10-0667-HC Deny.wpd
27
28
16
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