(HC) Castillo v. Haws, No. 1:2012cv00302 - Document 43 (E.D. Cal. 2015)
Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Barbara A. McAuliffe on 11/19/2015 recommending that 1 Petition for Writ of Habeas Corpus be DENIED. Referred to Judge Lawrence J. O'Neill; Objections to F&R due by 12/24/2015. (Lundstrom, T)
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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 RUDY CASTILLO, Petitioner, 10 FINDINGS AND RECOMMENDATIONS RECOMMENDING THAT THE COURT DENY THE PETITION FOR WRIT OF HABEAS CORPUS UNDER 28 U.S.C. §2254 v. 11 12 13 Case No. 1:12-cv-00302-LJO-BAM HC F.B. HAWS, Respondent. 14 15 16 Petitioner, a state prisoner proceeding pro se with a petition for writ of habeas corpus 17 18 pursuant to 28 U.S.C. § 2254, contends that (1) his rights under the Fifth Amendment to the U.S. 19 Constitution were violated when police officers questioned him despite his lack of understanding 20 that he could refuse to answer questions; and (2) by failing to ask Petitioner about his arrest or 21 whether he understood his rights, trial counsel's assistance was ineffective, violating Petitioner's 22 Sixth Amendment right to counsel. 23 I. Factual Background 24 Theodore Betts and Gabriel Martin lived together in a remote area of Raymond, Madera County [, California]. Martin and Betts had a large amount of marijuana at their home. On March 21, 2005, an SUV pulled into Martin and Betts's driveway. A young woman, Marissa Rubianes, was driving. 25 26 27 28 /// 1 1 2 3 4 5 6 Rubianes asked Martin if he knew of an apartment or house for rent in the area. Martin said he did not and asked her to turn the car around and leave. As Rubianes started to back up, two men, Anthony Burciaga and Anthony Mendez, jumped out of the back of the SUV holding guns. Burciaga ordered Martin to keep his dog away and told Martin to walk back toward the house. Burciaga was pointing a shotgun at Martin. When Martin, Burciaga, and Mendez got close to the house, Betts came out with a shotgun. Burciaga shoved Martin and ran toward the back of the house. Betts told Martin to go get another gun and Martin ran inside the house. 7 8 9 10 11 12 13 14 Martin was inside the house reaching for a rifle when he heard a shotgun blast coming from the back of the house. Betts came inside, stating he had been shot. Martin went outside, did not see anyone, and fired a round into the air. Martin then went inside to call 911. Betts bled to death at the scene. Burciaga and Mendez were arrested a short distance from the shooting. On the day of the shooting, [Petitioner] provided a statement to law enforcement. [Petitioner] told officers that around March 2004, a friend of his had told him that he knew a man who had a lot of marijuana and that [Petitioner] should go and get it. The friend, Bob, told [Petitioner] that it would be easy to take the marijuana because the man who had it was in a wheelchair, could be tied up, and no one would have to be hurt. Bob said the man had 200 to 300 pounds of marijuana on the side of his house. 15 16 17 18 About two months later in May 2004, Bob drove [Petitioner] to the man's house to show [Petitioner] where it was located. Later, [Petitioner] went to the man's house by himself to be sure he remembered the location. On March 20, 2005, [Petitioner] and Bob discussed the marijuana with Burciaga. Bob asked [Petitioner] and Burciaga to steal the marijuana; they agreed. [Petitioner] claimed Burciaga "took care of it from there." 19 20 21 On March 21, 2005, [Petitioner], Burciaga, and Mendez were in the SUV with Rubianes. [Petitioner] acknowledged seeing the shotgun and pistol in the car. When they got to the Martin and Betts property, Burciaga and Mendez got out of the car. [Petitioner] was lying down on the back seat. 22 23 24 25 26 27 [Petitioner] heard a commotion and sat up. He saw Burciaga and Mendez walking Martin toward the house. [Petitioner] stepped out of the car. At this point, Betts came out of the house pointing a gun. [Petitioner] heard Martin saying, "no, no" to Betts. [Petitioner,] Rubianes, Burciaga, and Mendez were charged with murder. The special circumstance that the murder was committed in the course of a robbery was alleged. It was also alleged the Burciaga personally and intentionally discharged a firearm; Mendez personally used a firearm; and as to [Petitioner] and Rubianes, a principal was armed with a firearm. 28 2 1 The trial court severed the trials so that Burciaga and Rubianes were tried together and [Petitioner] and Mendez were tried together. 2 On April 8, 2008, the jury found [Petitioner] guilty of first degree murder and found true the special circumstance that he was a major participant and acted with reckless disregard for human life while committing a robbery. The jury also found true the special allegation that a principal was armed with a firearm. 3 4 5 A jury also convicted Mendez and Burciaga of murder and the special circumstance and firearm allegation were found true as to both [sic]. Rubianes was acquitted. 6 7 8 [Petitioner] was sentenced to a term of life without possibility of parole. 9 People v. Castillo (F055493) (Cal. Ct. App. June 29, 2009), Lodged Doc. 8 at 1-4. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 II. Procedural Background A criminal complaint filed March 23, 2005, and amended March 24, 2005, charged Petitioner and three co-defendants with (1) murder (Cal. Penal Code § 187(a)) and (2) robbery (Cal. Penal Code § 190.2(a)(17)). On June 19, 2007, Petitioner moved to suppress the March 24, 2005, statement he made to police after his arraignment but before the appointment of counsel to represent him (Petitioner's second statement). The district attorney conceded that Petitioner's second statement was inadmissible in the People's case in chief, and the trial court granted the motion on July 16, 2007. Petitioner and co-defendant Mendez were tried before a jury on March 26 and 27, and April 1, 2, 3, and 8, 2008. On April 8, 2008, the jury found Petitioner guilty of the first degree murder of Theodore Betts (Cal. Penal Code § 187(a)). The jury found true the special circumstances that (1) Petitioner was a major participant in the crime and acted with reckless indifference in the commission of robbery (Cal. Penal Code § 190.2(a)(17)), and (2) Petitioner was armed with a firearm (shotgun (Cal. Penal Code § 12022(a)(1)). On June 3, 2008, the trial judge sentenced Petitioner to life imprisonment without possibility of parole. Petitioner filed a notice of appeal on June 10, 2008, contending that (1) the felony murder special circumstance should be reversed because the evidence was insufficient to determine that Petitioner was a major participant in the attempted robbery and that he acted with reckless 28 3 1 indifference to life, and (2) defense counsel's concession that Petitioner was a major participant in 2 the attempted robbery constituted ineffective assistance of counsel. The Court of Appeals denied 3 the appeal on June 29, 2009. 4 On August 11, 2009, Petitioner filed a petition for review in the California Supreme 5 Court, contending that (1) the felony murder special circumstance should be reversed because the 6 evidence was insufficient to determine that Petitioner was a major participant in the attempted 7 robbery and that he acted with reckless indifference to life, and (2) defense counsel's concession 8 that Petitioner was a major participant in the attempted robbery constituted ineffective assistance 9 of counsel. The Supreme Court denied the petition for review on October 19, 2009. 10 On November 3, 2009, Petitioner filed a petition for writ of habeas corpus in the Madera 11 County Superior Court, contending that (1) Petitioner's confession was obtained without a valid 12 waiver of his right to counsel and (2) the assistance of trial counsel was ineffective because (a) 13 counsel conceded in his closing that Petitioner was a major participant in the attempted robbery 14 and (b) counsel failed to seek exclusion of Petitioner's confession, which was obtained without 15 Petitioner's waiver of his right to counsel. On July 23, 2010, the Superior Court conducted an 16 evidentiary hearing at which Petitioner and his trial counsel, Randall Shrout, testified. The 17 Superior Court denied the petition on September 17, 2010. 18 19 20 21 Petitioner filed a petition for writ of habeas corpus in the California Court of Appeal on December 2, 2010. The Court of Appeals summarily denied the petition on December 14, 2010. On June 30, 2011, Petitioner filed a petition for writ of habeas corpus in the California Supreme Court. The Supreme Court summarily denied the petition on January 25, 2012. 22 II. Standard of Review 23 Habeas corpus is neither a substitute for a direct appeal nor a device for federal review 24 of the merits of a guilty verdict rendered in state court. Jackson v. Virginia, 443 U.S. 307, 332 25 n. 5 (1979) (Stevens, J., concurring). Habeas corpus relief is intended to address only "extreme 26 malfunctions" in state criminal justice proceedings. Id. Under the Antiterrorism and Effective 27 Death Penalty Act of 1996 ("AEDPA"), a petitioner can prevail only if he can show that the 28 state court's adjudication of his claim (1) resulted in a decision that was contrary to, or involved 4 1 an unreasonable application of, clearly established Federal law, as determined by the Supreme 2 Court of the United States; or (2) resulted in a decision that was based on an unreasonable 3 determination of the facts in light of the evidence presented in the State court proceeding. 28 4 U.S.C. § 2254(d); Lockyer v. Andrade, 538 U.S. 63, 70-71 (2003); Williams v. Taylor, 529 U.S. 5 362, 413 (2000). "By its terms, § 2254(d) bars relitigation of any claim 'adjudicated on the 6 merits' in state court, subject only to the exceptions set forth in §§ 2254(d)(1) and (d)(2)." 7 Harrington v. Richter, 562 U.S. 86, 98 (2011). 8 As a threshold matter, a federal court must first determine what constitutes "clearly 9 established Federal law, as determined by the Supreme Court of the United States." Lockyer, 10 538 U.S. at 71. To do so, the Court must look to the holdings, as opposed to the dicta, of the 11 Supreme Court's decisions at the time of the relevant state-court decision. Id. The court must 12 then consider whether the state court's decision was "contrary to, or involved an unreasonable 13 application of, clearly established Federal law." Id. at 72. The state court need not have cited 14 clearly established Supreme Court precedent; it is sufficient that neither the reasoning nor the 15 result of the state court contradicts it. Early v. Packer, 537 U.S. 3, 8 (2002). The federal court 16 must apply the presumption that state courts know and follow the law. Woodford v. Visciotti, 17 537 U.S. 19, 24 (2002). The petitioner has the burden of establishing that the decision of the 18 state court is contrary to, or involved an unreasonable application of, United States Supreme 19 Court precedent. Baylor v. Estelle, 94 F.3d 1321, 1325 (9th Cir. 1996). 20 "A federal habeas court may not issue the writ simply because the court concludes in its 21 independent judgment that the relevant state-court decision applied clearly established federal 22 law erroneously or incorrectly." Lockyer, 538 U.S. at 75-76. "A state court's determination that 23 a claim lacks merit precludes federal habeas relief so long as 'fairminded jurists could disagree' 24 on the correctness of the state court's decision." Harrington, 562 U.S. at 101 (quoting 25 Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). Thus, the AEDPA standard is difficult to 26 satisfy since even a strong case for relief does not demonstrate that the state court's 27 determination was unreasonable. Harrington, 562 U.S. at 102. 28 /// 5 1 2 III. No Waiver of Right to Counsel Petitioner contends that he did not understand his rights under Miranda v. Arizona (384 3 U.S. 436 (1966)) and never waived those rights before the questioning that led to his first 4 statement to police. Respondent counters that the Superior Court reasonably determined that 5 Petitioner nonverbally waived his right to counsel before he answered the questions of sheriff's 6 officers. 7 A. 8 The transcript of Petitioner's statement begins with Detective John Grayson reading 9 Defendant's First Statement Petitioner his Miranda rights and asking him whether he understood them. The transcript does 10 not indicate that Petitioner replied. Grayson then stated, "Okay," and proceeded to question 11 Petitioner, who responded. 12 Before the prosecutor played the recording of Petitioner's statement during trial, 13 Grayson testified that before speaking with Petitioner following his arrest, he read Petitioner 14 "his rights from a department-issued Miranda card," and asked Petitioner if he understood. 15 Reporter's Transcript (April 1, 2008) at 2847. According to Grayson, Petitioner confirmed that 16 he understood his rights. Reporter's Transcript (April 1, 2008) at 2847-48. 17 In a declaration, Petitioner's appellate counsel, Sharon Wrubel, stated that she did not 18 raise a Miranda issue on appeal because she was unable to establish that Petitioner did not 19 nonverbally indicate his understanding of his rights. 20 At the evidentiary hearing before the Superior Court, Petitioner's counsel, Randall 21 Shrout, testified that although he brought a successful motion to suppress Petitioner's second 22 statement to sheriff's deputies, he did not move to suppress the first statement, explaining: 23 25 I don't think I did because in discussing with [Petitioner] all the statements and stuff, I believe we discussed the parameters of the statements and whether he said "yes" or "no" and why the verbal "yes" wasn't on the recording. I believe he told me that he nodded his head. 26 Reporter's transcript (July 23, 2010) at 9. 24 27 28 Shrout admitted that he lacked clear recollection of the interview, testifying that he had reviewed his records and did not have "specific notes of [Petitioner] saying that in the first 6 1 statement I did cooperate or said 'yes' to law enforcement." Reporter's Transcript (July 23, 2010) 2 at 10. He added, however, that it would not have made sense to have brought a motion to 3 suppress the second statement, but not to seek to suppress the first statement, unless he had 4 information indicating that Petitioner had waived his right to counsel and proceeded voluntarily. 5 In his testimony at the evidentiary hearing, Petitioner denied that he shook his head to 6 indicate his understanding after Grayson read the Miranda warnings to Petitioner and asked 7 whether he understood. Petitioner also testified that he never discussed his first statement with 8 Shrout. He denied ever telling Shrout that he shook his head to indicate his understanding after 9 Grayson read his Miranda rights. 10 B. 11 In its denial of the habeas petition, the Superior Court concluded that Petitioner's Miranda 12 rights were not violated in the course of his first statement:1 13 [Petitioner's] conviction was affirmed on appeal to the Fifth District Court of Appeal. (F055493) Sharon Wrubel, petitioner's attorney on appeal, did not raise the Miranda issue because she could not establish that petitioner did not give a non-verbal indication he understood his Miranda rights. (Declaration of Wrubel attached to petition). Detective Grayson testified at trial that petitioner understood his rights. (RT 326:15-327:4) Petitioner's statement was audio recorded, however, the transcript does not reflect that petitioner said he understood his rights. Mr. Shrout testified at the evidentiary hearing that he asked petitioner if he told Grayson he understood his rights. Shrout then testified that petitioner told him that he nodded yes to Grayson indicating that he understood his rights. At the hearing, petitioner denied nodding yes and denied that he told Shrout he had nodded yes. This court finds that Mr. Shrout was credible and that the petitioner was not credible. Mr. Shrout testified that had petitioner told him he had not nodded yes then he would have brought a motion to suppress the statement. But since petitioner told him he did nod yes then such a motion would not be proper. Mr. Shrout knew the two statements were detrimental to his client and since he was successful in excluding one of them then he would have sought to suppress the other statement if it was proper. Additionally, the interview between petitioner and Grayson suggested that petitioner nodded to Grayson indicating he understood his rights. Right after Grayson asked petitioner is he understood "all that[,"] Grayson said "okay" indicating that Grayson was acknowledging petitioner's nod that he understood his rights, Lastly, there was no indication from reading 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Superior Court's Denial of Habeas Petition 1 Because the California Court of Appeals and Supreme Court both summarily denied review of the state habeas petition, the Court must "look through" the summary denial to the last reasoned decision, which is, in this case, the opinion of the Madera County Superior Court. Ylst v. Nunnemaker, 501 U.S. 797, 803-06 (1991). 7 1 2 the transcript of the interview in its entirety that petitioner did not understand his rights or anything else covered by Grayson with petitioner in the interview. 3 Lodged Document 16: Order at 2 (September 17, 2010). 4 C. The State Court's Credibility Determination 5 The first question requires a factual determination: Did Petitioner indicate his 6 understanding of Miranda rights by nodding his head or another nonverbal response. The state 7 court resolved the factual dispute against Petitioner, finding "that Mr. Shrout was credible and 8 that the petitioner was not credible." Lodged Document 16: Order at 2 (September 17, 2010). 9 Although reasonable minds could disagree on the parties' relative credibility, on habeas review 10 this Court may not substitute its own credibility assessment for that of the state court. See Rice 11 v. Collins, 546 U.S. 333, 335 (2006). The Superior Court's decision was a reasonable 12 determination of the facts in light of the trial record and the testimony at the evidentiary 13 hearing. 14 D. 15 Even if Petitioner did not nonverbally indicate his understanding of his Miranda rights, 16 17 Waiver of Miranda Rights established federal law supports the conclusion that Petitioner waived his rights. Pursuant to Miranda, a person in custody must be informed before interrogation that he 18 has a right to remain silent and to have a lawyer present. 384 U.S. 436. The decision 19 formulated a warning to be given to all suspects before custodial interrogation. Berghuis v. 20 Thompkins, 560 U.S. 370, 380 (2010). The transcript of Petitioner's first statement reflects that 21 Grayson read the Miranda warnings to Petitioner before speaking with him. Thus, as in 22 Berghuis, the issue here is not whether Grayson provided a Miranda warning, but whether 23 Petitioner's response (or lack of response) constituted a waiver of those rights. 24 "An express written or oral statement of waiver of the right to remain silent or the right 25 to counsel is usually strong proof of the validity of that waiver, but is not inevitably either 26 necessary or sufficient to establish waiver." North Carolina v. Butler, 441 U.S. 369, 373 27 (1979). Miranda holds that "full comprehension of the rights to remain silent and request an 28 attorney are sufficient to dispel whatever coercion is inherent in the interrogation process." 8 1 Moran v. Burbine, 475 U.S. 412, 427 (1986). Observing Miranda's requirements is not a matter 2 of form, but of whether the defendant has knowingly and voluntarily waived his rights. Id. 3 This question is resolved based on "'the particular facts and circumstances surrounding the case, 4 including the background, experience, and conduct of the accused.'" Id. at 374 (quoting 5 Johnson v. Zerbst, 304 U.S. 458, 464 (1938)). "A defendant's silence, coupled with a 6 understanding of his rights and a course of conduct indicating waiver," is sufficient basis to 7 conclude that a defendant has waived his rights. Moran, 475 U.S. at 373. 8 9 If a suspect intends to invoke his Miranda right to counsel, he must do so "unambiguously." Berghuis, 560 U.S. at 381 (quoting Davis v. United States, 512 U.S. 452, 10 459 (1994)). "If an accused makes a statement concerning the right to counsel "that is 11 ambiguous or equivocal" or makes no statement, the police are not required to end the 12 interrogation . . . or to ask questions to clarify whether the accused wants to invoke his or her 13 Miranda rights. Id. (quoting Davis, 512 U.S. at 461-62). "[T]here is no principled reason to 14 adopt different standards for determining when an accused has invoked the Miranda right to 15 remain silent and the Miranda right to counsel." Id. Accordingly, the Supreme Court 16 concluded that "a suspect who has received and understood the Miranda warnings, and has not 17 invoked his Miranda rights, waives the right to remain silent by making an uncoerced statement 18 to the police." Id. at 388-89. 19 Considered as a whole, Petitioner's first statement includes nothing to suggest that 20 Petitioner did not knowingly and voluntarily participate in the colloquy. Petitioner willingly 21 recounted the participants' plan to rob Betts and Martin of their sizable marijuana stash, his 22 anticipation that violence would not be required because the "old men" were disabled and 23 unlikely to resist the theft, his surprise when Betts and Martin confronted the co-defendants 24 with armed force, and his running from the scene when the shooting began. 25 E. Conclusion 26 The Superior Court reasonably resolved this claim factually by finding that Petitioner 27 nonverbally confirmed his understanding of his Miranda rights. Even if Petitioner did not 28 /// 9 1 nonverbally indicate his understanding, the Superior Court’s conclusion that Petitioner waived 2 his Miranda rights was reasonable under established federal law. 3 IV. 4 Ineffective Assistance of Counsel Petitioner contends that his Sixth Amendment right to counsel was violated by Shrout's 5 ineffective assistance, specifically his failure to ask Petitioner about his arrest and whether he 6 ever indicated to deputies that he did not understand his rights. Although Respondent restates 7 his position that this claim is unexhausted, in light of the Court's prior determination that the 8 claim was presented to the state courts (see Doc. 26), he contends that Strout's assistance was 9 appropriate in light of his knowledge that Petitioner had nonverbally indicated his 10 understanding of his Miranda rights. 11 A. Standard of Review 12 The purpose of the Sixth Amendment right to counsel is to ensure that the defendant 13 receives a fair trial. Strickland v. Washington, 466 U.S. 668, 686 (1984). "[T]he right to 14 counsel is the right to effective assistance of counsel." McMann v. Richardson, 397 U.S. 759, 15 771 n. 14 (1970). "The benchmark for judging any claim of ineffectiveness must be whether 16 counsel's conduct so undermined the proper functioning of the adversarial process that the trial 17 cannot be relied on as having produced a just result." Strickland, 466 U.S. at 686. 18 To prevail on a claim of ineffective assistance of counsel, a petitioner must demonstrate 19 that his trial counsel's performance "fell below an objective standard of reasonableness" at the 20 time of trial and "that there is a reasonable probability that, but for counsel's unprofessional 21 errors, the result of the proceeding would have been different." Id. at 688, 694. The Strickland 22 test requires Petitioner to establish two elements: (1) his attorney's representation was deficient 23 and (2) prejudice. Both elements are mixed questions of law and fact. Id. at 698. 24 These elements need not be considered in order. Id. at 697. "The object of an 25 ineffectiveness claim is not to grade counsel's performance." Id. If a court can resolve an 26 ineffectiveness claim by finding a lack of prejudice, it need not consider whether counsel's 27 performance was deficient. Id. 28 /// 10 1 B. 2 In his direct appeal and in the habeas petition before the California Superior Court, State Opinion 3 Petitioner contended that Shrout’s ineffective assistance arose when he conceded in his closing 4 argument that Petitioner was a major participant in the robbery. Petitioner does not raise the 5 major participant issue, that his attorney conceded the issue, in his petition to this Court. 6 As previously discussed, the Madera County Superior Court rejected the factual basis 7 for Petitioner’s argument, concluding that Strout’s testimony was the more credible. The 8 California Supreme Court denied the petition for habeas corpus, citing People v. Duvall, 9 9 Cal.4th 464, 474 (1995) (holding that the petitioner bears the burden of pleading and proving 10 adequate grounds for habeas relief). “If no prima facie case for relief is cited, the court will 11 summarily deny the petition.” Id. at 475. As a result, the California Supreme Court left 12 undisturbed the Superior Court’s determination that Strout’s testimony that he had to have 13 discussed the first statement was more credible than Petitioner’s contrary testimony. 14 C. No Deficient Performance 15 The state courts reasonably concluded that the ineffective assistance claim could not 16 prevail in light of the Superior Court’s finding that Shrout’s testimony was more credible than 17 Petitioner’s testimony. Although Shrout conceded that his notes neither supported nor 18 disproved his recollection that Petitioner told him that he had nodded affirmatively to his 19 understanding of his rights, Shrout reasoned that his memory must have been accurate since he 20 brought a successful motion to suppress Petitioner’s second statement to deputies but did not 21 move to suppress Petitioner’s first statement. A state court could reasonably have concluded 22 that Strout’s declining to bring a motion to suppress the first statement under these circumstance 23 would have been consistent with California Rules of Professional Conduct §§ 5-200, 5-200A, & 24 5-200B, requiring counsel to employ only such means as are consistent with the truth and 25 precluding counsel from misleading the court through artifice or false statements. 26 D. No Proof of Prejudice 27 In any event, because the Sixth Amendment guarantee of counsel is intended to ensure 28 the reliability of the trial's outcome, "an error by counsel, even if professionally unreasonable, 11 1 does not warrant setting aside the judgment of a criminal proceeding if the error had no effect 2 on the judgment." Strickland, 466 U.S. at 691-92. Merely showing that counsel's error had 3 some conceivable effect on the outcome is insufficient: A petitioner must establish a reasonable 4 probability that, but for counsel's unprofessional errors, the result of the proceeding would have 5 differed. Strickland, 466 U.S. at 694. 6 Even if Petitioner’s confession to participation in the planned robbery had been 7 suppressed, the evidence against Petitioner and the two other gunmen in the robbery that led to 8 Betts’ murder was overwhelming. Despite defense attempts to use the drug charges against 9 Martin to impeach his credibility, Martin, an eyewitness, testified to the facts of the defendants’ 10 attempt to rob him and Betts that led to Betts’ death. Sheriff’s deputies testified that they 11 apprehended Petitioner and two other participants on roads in the vicinity of the murder, and 12 recovered the abandoned weapons on a path leading from Betts’ and Martin’s ranch. The three 13 male participants offered similar accounts of the planned robbery with the exception of which 14 of them shot Betts.2 Because the conviction was for felony murder, the participant’s differing 15 accounts of who actually fired the fatal shotgun blast were immaterial to Petitioner’s guilt as a 16 major participant in the robbery. 17 E. 18 The California Supreme Court reasonably rejected Petitioner’s claim of ineffective 19 Conclusion assistance of counsel. 20 V. Certificate of Appealability 21 A petitioner seeking a writ of habeas corpus has no absolute entitlement to appeal a 22 district court's denial of his petition, but may only appeal in certain circumstances. Miller-El v. 23 Cockrell, 537 U.S. 322, 335-36 (2003). The controlling statute in determining whether to issue 24 a certificate of appealability is 28 U.S.C. § 2253, which provides: 25 (a) In a habeas corpus proceeding or a proceeding under section 2255 before a district judge, the final order shall be subject to review, on appeal, by the court of appeals for the circuit in which the proceeding is held. 26 27 2 28 Rubianes, the get-away driver, was a juvenile on the date of the crime. The nature of her statement, if any, was not readily apparent from the record. 12 1 (b) There shall be no right of appeal from a final order in a proceeding to test the validity of a warrant to remove to another district or place for commitment or trial a person charged with a criminal offense against the United States, or to test the validity of such person's detention pending removal proceedings. 2 3 4 (c) (1) Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from the final order in a habeas corpus proceeding in which 5 6 (A) the detention complained of arises out of process issued by a State court; or 7 (B) the final order in a proceeding under section 2255. 8 (2) A certificate of appealability may issue under paragraph (1) only if the applicant has made a substantial showing of the denial of a constitutional right. 9 10 (3) The certificate of appealability under paragraph (1) shall indicate which specific issues or issues satisfy the showing required by paragraph (2). 11 12 If a court denies a habeas petition, the court may only issue a certificate of appealability 13 14 15 16 "if jurists of reason could disagree with the district court's resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further." Miller-El, 537 U.S. at 327; Slack v. McDaniel, 529 U.S. 473, 484 (2000). Although the petitioner is not required to prove the merits of his case, he must demonstrate 17 "something more than the absence of frivolity or the existence of mere good faith on his . . . 18 part." Miller-El, 537 U.S. at 338. 19 In the present case, the Court finds that reasonable jurists would not find the Court's 20 21 22 23 24 determination that Petitioner is not entitled to federal habeas corpus relief debatable, wrong, or deserving of encouragement to proceed further. Petitioner has not made the required substantial showing of the denial of a constitutional right. Accordingly, the Court declines to issue a certificate of appealability. /// 25 /// 26 27 28 /// /// 13 1 2 3 VI. Recommendation The undersigned recommends that the Court dismiss the Petition for writ of habeas corpus with prejudice and decline to issue a certificate of appealability. 4 These Findings and Recommendations will be submitted to the United States District 5 6 Judge assigned to the case, pursuant to the provisions of 28 U.S.C ' 636(b)(1). Within thirty 7 (30) days after being served with these Findings and Recommendations, either party may file 8 written objections with the Court. The document should be captioned AObjections to Magistrate 9 Judge=s Findings and Recommendations.@ Replies to the objections, if any, shall be served and 10 11 filed within fourteen (14) days after service of the objections. The parties are advised that failure to file objections within the specified time may constitute waiver of the right to appeal the District 12 13 14 Court's order. Wilkerson v. Wheeler, 772 F.3d 834, 839 ((9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 15 16 17 18 IT IS SO ORDERED. Dated: /s/ Barbara November 19, 2015 A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 28 14
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