The opinion of the court was delivered by: Claudia Wilken United States District Judge
ORDER DENYING AS UNNECESSARY REQUEST FOR EXTENSION OF TIME TO FILE REQUEST FOR CERTIFICATE OF APPEALABILITY AND GRANTING IN PART REQUEST FOR CERTIFICATE OF APPEALABILITY (Docket nos. 54, 55)
Petitioner Tommy Lonnell Ramsey, Jr., a prisoner of the State of California, filed this petition for a writ of habeas corpus challenging the validity of his State conviction. In an Order dated February 22, 2005, the Court denied the petition on the merits. On March 21, 2005, Petitioner filed a notice of appeal and an application for a certificate of appealability (COA).*fn1 For the reasons discussed below, the Court GRANTS in part and DENIES in part Petitioner's request for a COA.
Petitioner was convicted by a jury in Alameda County Superior Court of one count of first degree murder, two counts of attempted murder, one count of assault with a firearm and two counts of possession of a firearm by a felon. On February 7, 1992, he was sentenced to two consecutive indeterminate life terms and a determinate term of thirteen years in State prison. Thereafter, his challenges to his conviction were rejected on direct appeal and on habeas corpus review by the State courts.
This Court denied on the merits the following claims raised by Petitioner in his federal habeas corpus petition: (1) ineffective assistance of trial counsel based on counsel's failure to argue that two rifles were the product of illegal searches and should have been suppressed, counsel's failure to object to the trial court vacating Petitioner's time waiver and setting an early trial date, and counsel's failure to call Tasha Tugman as an alibi witness; (2) ineffective assistance of appellate counsel based on appellate counsel's failure to argue that trial counsel was ineffective; (3) prosecutorial misconduct based on the prosecutor's failure to correct the trial court's misimpression at the suppression hearing that Petitioner was not in custody when he told police about a second rifle and accompanied them to recover it; and (4) error based on the trial court order vacating Petitioner's time waiver, thereby forcing him to go to trial with an inadequately prepared defense.
Petitioner seeks a COA with respect to each claim raised in his federal petition, with the exception of the claim of trial court error based on the order vacating Petitioner's time waiver and the claim of ineffective assistance of counsel based on counsel's failure to object to that order. Petitioner also seeks to appeal this Court's denial of his request for an evidentiary hearing, arguing that the Court determined erroneously that his failure to develop the facts in State court was due to a lack of diligence on his part.
CERTIFICATE OF APPEALABILITY
A judge shall grant a COA "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). Nor does it require a showing that the appeal will succeed. Id.; accord Lambright v. Stewart, 220 F.3d 1022, 1025 (9th Cir. 2000) (issuance of COA is not precluded merely because petitioner cannot meet standard for actually obtaining habeas relief). The question is the debatability of the underlying constitutional claim, not the resolution of that debate. Miller-El, 537 U.S. 342.
Except for substituting the word "constitutional" for the word "federal," § 2253(c)(2) codified the standard announced by the United States Supreme Court in Barefoot v. Estelle, 463 U.S. 880, 892-93 (1983). See Slack, 529 U.S. at 483. In Barefoot, the Court explained that "a substantial showing of the denial of [a] federal right" means that a petitioner "must demonstrate that the issues are debatable among jurists of reason; that a court could resolve the issues [in a different manner], or that the questions are adequate to deserve encouragement to proceed further." 463 U.S. at 893 n.4 (citations and internal quotations omitted; emphasis in original). Any doubts about whether the Barefoot standard has been met must be resolved in the petitioner's favor. See Lambright, 220 F.3d at 1024-25.
The COA must indicate which issues satisfy the § 2253(c)(3) standard and the Court of Appeals is limited to considering only those claims. See Hiivala v. Wood, 195 F.3d 1098, 1103 (9th Cir. 1999).
I. INEFFECTIVE ASSISTANCE OF ...