Donald S. Jones, Petitioner-appellant, v. Kurt Peterson, Superintendent, Respondent,andphil Stanley, Superintendent, Chase Riveland, Director,department of Corrections, Respondents-appellees, 108 F.3d 338 (9th Cir. 1997)Annotate this Case
Before: BROWNING, RYMER, and T.G. NELSON, Circuit Judges
Our Circuit has not decided whether a magistrate judge has jurisdiction to issue a certificate of probable cause, and we do not decide that question now. We have held on several occasions that where an appeal presents a difficult jurisdictional question we may assume jurisdiction if the merits of the appeal are insubstantial. See, e.g., Clow v. U.S. Dep't of Housing & Urban Dev., 948 F.2d 614, 616-17 (9th Cir. 1991). We assume jurisdiction over this appeal on that basis.
The standard for determining whether habeas relief should be granted in a Section 2254 proceeding is whether the alleged errors "had a substantial and injurious effect or influence in determining the jury's verdict." Brecht v. Abrahamson, 507 U.S. 619, 637 (1993). The untainted evidence of guilt was overwhelming: Jones admitted to having touched the victim, and the testimony of the victim, an eyewitness, and a physician provided the details of the offenses charged. To the extent that constitutional errors occurred, they were not prejudicial and therefore did not rise to the level requiring habeas relief.