The opinion of the court was delivered by: Claudia Wilken United States District Judge
ORDER DENYING MOTION FOR CERTIFICATE OF APPEALABILITY
In an Order dated April 27, 2005, the Court denied Petitioner's habeas corpus petition on the merits. On May 10, 2005, Petitioner filed a timely notice of appeal and request for a certificate of appealability.
An appeal may not be taken to the court of appeals from the final order in a habeas corpus proceeding unless the Petitioner first obtains a certificate of appealability. A judge shall grant a certificate of appealability "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). "Where a district court has rejected the constitutional claims on the merits, the showing required to satisfy § 2253(c) is straightforward: the petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Slack v. McDaniel, 529 U.S. 473, 484 (2000). This requires an overview of the claims in the habeas petition and a general assessment of their merits. It does not require full consideration of the factual or legal bases adduced in support of the claims.
Miller-El v. Cockrell, 537 U. S. 322, 336 (2003). The question is the debatability of the underlying constitutional claim, not the resolution of that debate. Id. at 342.
Petitioner raised five claims for relief: (1) whether sufficient evidence supported the trial court's finding that the 1986 prior conviction constituted a serious felony under California Penal Code section 1192.7(c) and also a strike under Penal Code section 667(d)(1), and whether counsel on appeal provided ineffective assistance by failing to argue that there was insufficient evidence to support the prior conviction; (2) whether sufficient evidence supported the conviction for burglary on count one; (3) whether Petitioner's conviction on counts of burglary and receiving stolen property for the same property constituted a violation of due process; (4) whether the trial court's denial of the admission of evidence of third party culpability constituted a violation of due process; and (5) whether the trial court's failure to grant a mistrial due to prosecutorial misconduct constituted a violation of due process.
In its Order denying the claims on the merits the Court determined that the State courts' rejection of these claims was not contrary to or an unreasonable application of clearly established federal law. 28 U.S.C. 2254(d).
Having reviewed its Order anew in light of Petitioner's request for a certificate of appealability, the Court concludes that Petitioner has not made a substantial showing of the denial of a constitutional right. Accordingly, the Court declines to issue a certificate of appealability. Petitioner may, however, proceed to file a request for such a certificate directly with the Ninth Circuit. See Nevius v. Sumner, 105 F.3d 453, 458 (9th Cir. 1996).
The Clerk of Court shall forward to the court of appeals the case file with the notice of appeal (docket no. 15), the motion for certificate of appealability (docket no. 16), the Order denying the petition for a writ of habeas corpus (docket no. 13), and this Order. See Fed. R. App. P. 22(b); Asrar, 116 F.3d at 1270.
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