The opinion of the court was delivered by: Claudia Wilken United States District Judge
ORDER DIRECTING THE CLERK OF THE COURT TO FILE PETITIONER'S PROPOSED ORDER AS A NOTICE OF APPEAL, GRANTING AN EXTENSION OF TIME TO APPEAL, AND DENYING THE APPLICATION FOR A CERTIFICATE OF APPEALABILITY (Docket no. 24)
Petitioner Marcus Keyes filed a pro se petition for a writ of habeas corpus challenging the constitutionality of his State conviction for grand theft. Following briefing by the parties this Court denied the petition on the merits in an Order dated October 14, 2004 (docket no. 22), and entered judgment that same date (docket no. 23). On December 15, 2004, Petitioner filed an application for a certificate of appealability and a proposed "Order Extending Time for Appeal" until January 12, 2005, based on excusable neglect.
Rule 4(a) of the Federal Rules of Appellate Procedure requires that a notice of appeal "be filed with the clerk of the district court within 30 days after the entry of the judgment or order appealed from." Fed. R. App. P. 4(a)(1). Relief from the deadline for a timely notice of appeal may be obtained by a motion in the district court under Rule 4(a)(5), which allows for an extension of time if the party requests it within thirty days of the expiration of the time to file the notice and shows excusable neglect or good cause. See Fed. R. App. P. 4(a)(5). A court may consider a timely motion for extension of time the functional equivalent of a notice of appeal provided it gives notice of the three elements required by Rule 3(c)(1). Andrade v. Attorney General, 270 F.3d 743, 752 (9th Cir. 2001), reversed on other grounds, Lockyer v. Andrade, 123 S.Ct. 1166 (2003). Rule 3(c)(1) states that the notice of appeal must: (1) specify the party or parties taking the appeal, (2) designate the judgment or order at issue, and (3) name the court to which the appeal is taken. Fed. R. App. P. 3(c)(1).
Petitioner filed his proposed order extending time for appeal within thirty days of the expiration of the time to file his notice of appeal (November 15, 2004) and the request contains the elements required under Rule 3(c)(1). Accordingly, the Court construes the proposed order as the functional equivalent of a timely notice of appeal and directs the Clerk of the Court to file and docket it as such.
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, however. 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).
Petitioner raised three claims for relief in his petition: the denial of his motion for substitution of counsel violated his Sixth Amendment right to counsel, trial counsel's failure to call an excused juror as a witness amounted to ineffective assistance of counsel, and appellate counsel was ineffective for failing to raise on appeal the claim that the evidence was insufficient to support the verdict of grand theft.
With respect to the denial of Petitioner's motion for substitution of counsel, this Court concluded that the California Court of Appeal properly upheld the trial court's denial of Petitioner's request. The trial court held a hearing on the matter and Petitioner did not point to, nor did this Court find, any additional inquiry that the trial court should have or could have made. The Court also found that continuing the case would have delayed jury selection and inconvenienced prospective jurors already called and prospective witnesses who were set to testify, and that Petitioner had not established that his relationship with counsel was such that there was a total lack of communication preventing an adequate defense. In sum, this Court concluded that the trial court's denial of the motion for substitution of counsel did not "actually violate" Petitioner's constitutional rights. Schell v. Witek, 218 F.3d 1017, 1026 (9th Cir. 2000). Having reviewed its Order and rationale, the Court finds 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 with respect to this claim.
The Court also finds that a certificate of appealability is not warranted with respect to Petitioner's ineffective assistance of counsel claim. Petitioner argued that his attorney should have further investigated and called as a witness an excused juror who, more than a year after the theft, drove by the facility from which Petitioner had been accused of stealing and saw an individual, from more than a block away, whom Petitioner maintains might have been the real thief. This Court found that the California Court of Appeal's rejection of this claim was not contrary to or an unreasonable application of Strickland v. Washington, 466 U.S. 668 (1984):
Even if Juror No. 4 had been available to testify and would have testified to the facts which he had relayed to the trial court, the record shows that his testimony would not have created a reasonable probability that the jury would have reached a verdict more favorable to Petitioner. That an African-American male was seen within a block of the Netscape campus almost a year after the theft would have no significant tendency to discredit the strong evidence that Petitioner committed the theft. Moreover, no second suspect was ever identified, let alone apprehended. And even if a second suspect was still at large and seen in the area of the Netscape campus, that fact alone would not exculpate Petitioner.
Based on this record, the Court finds that reasonable jurists would not find this assessment of the constitutional claims debatable or wrong. Accordingly, the application for a certificate of appealability is denied.
Petitioner's final claim was that appellate counsel was ineffective for failing to raise on direct appeal the argument that there was insufficient evidence to support the verdict of grand theft. The Court rejected the claim as follows:
Petitioner has not shown that he had a viable insufficiency of the evidence claim that appellate counsel was required constitutionally to raise on appeal. In this case there was no dispute that property over $400 in value was stolen from Netscape, thus satisfying the State law definition of grand theft. See Cal. Pen. Code § 487. The only issue was whether Petitioner stole the property. As set forth in detail in the opinion of the California Court of Appeal, the record provides more than sufficient evidence from which the jury could have reached the conclusion that he did. That the evidence presented by the prosecution was circumstantial and conflicted with alibi evidence presented by Petitioner does not negate this conclusion. Circumstantial evidence and inferences drawn from that evidence may be sufficient to sustain a conviction. Walters v. Maass, 45 F.3d 1355, 1358 (9th Cir. 1995). Moreover, if confronted by a record that supports conflicting inferences, a federal habeas court must presume that the trier of fact resolved any such conflicts in favor of the prosecution and must defer to that resolution. [Jackson v. Virginia, 443 U.S. 307, 326 (1979)]. Under Jackson, a jury's credibility determinations are entitled to near-total deference and may not be revisited by a federal habeas court except in the most exceptional of circumstances. Bruce v. Terhune, 376 F.3d 950, 957 (9th Cir. 2004). No such circumstances have been shown to exist in this case.
Petitioner has not shown that appellate counsel's failure to raise an insufficiency of the evidence claim on direct appeal amounted to deficient performance, or that there is a reasonable probability that, but for counsel's failure to do so, he would have prevailed on appeal. The California Supreme Court's denial of Petitioner's ineffective assistance of ...