The opinion of the court was delivered by: Hon. Napoleon A. Jones, Jr.
ORDER: (1) GRANTING IN PART AND DENYING IN PART PETITIONER'S APPLICATION FOR CERTIFICATE OF APPEALABILITY [DOC. NO. 65]; (2) GRANTING PETITIONER'S MOTION FOR LEAVE TO APPEAL IN FORMA PAUPERIS [DOC. NO. 66]; AND (3) GRANTING IN PART PETITIONER'S MOTION FOR COPIES [DOC. NO. 67].
The matters before the Court are Petitioner Keith Williams' Application for a Certificate of Appealability ("Application") (doc. no. 65), Motion for Leave to Appeal in Forma Pauperis (doc. no. 66), and Motion for Copies. [Doc. No. 67.] Petitioner filed the Application on the grounds that (1) failure to provide the jury with written instructions on duress was unconstitutional; (2) the prosecutor unconstitutionally used peremptory challenges to dismiss jurors based on race and gender; (3) the magistrate judge erred in failing to appoint counsel; and (4) the Court erred in denying Petitioner an opportunity to amend the Petition.
On October 7, 2002, Petitioner was charged with: 1) murder in violation of California Penal Code § 187; 2) carjacking in violation of Pen. Code § 215(a); and 3) robbery in violation of Pen. Code § 211. (Clerk's Trans. at 212-13.) Several special circumstances were also alleged, including a gun allegation. (Id.) On October 23, 2002, Petitioner was convicted of first-degree murder, among other crimes. (Id. at 150-55.) On December 12, 2002, Petitioner was sentenced to life in prison without the possibility of parole for the first-degree-murder conviction and the other sentences were stayed pursuant to California sentencing rules. (Id. at 166-67, 217.)
On November 18, 2005, Petitioner filed a Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 ("Petition"). [Doc. No. 1.] On May 10, 2007, Petitioner filed a Traverse to the Petition ("Traverse"). [Doc. No. 56.] On April 14, 2008, Judge Cathy Ann Bencivengo filed a Report and Recommendation ("R&R") recommending that the Petition be denied. [Doc. No. 60.] On May 19, 2008, Petitioner timely filed an Objection to the Report and Recommendation ("Objection"). [Doc. No. 61.] On August 21, 2008, the Court issued an Order Adopting the Report and Recommendation ("Order") and denying the Petition. [Doc. No. 62.]
A state prisoner may not appeal the denial of a § 2254 habeas petition unless he or she obtains a certificate of appealability from a district or circuit judge. 28 U.S.C. § 2253(c)(1)(A); see also United States v. Asrar,116 F.3d 1268, 1269-70 (9th Cir. 1997) (holding that district courts have authority to issue certificates of appealability pursuant to AEDPA). In deciding whether to grant a certificate of appealability, a court must either indicate the specific issues supporting a certificate or state reasons why a certificate is not warranted. See Asrar, 116 F.3d at 1270. A certificate of appealability is authorized "if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c))(2). To meet this standard, petitioner must show that: (1) the issues are debatable among jurists of reason; (2) that a court could resolve the issues in a different manner; or (3) that the questions are adequate to deserve encouragement to proceed further. Lambright v. Stewart, 220 F.3d 1022, 1024-25 (9th Cir. 2000) (citing Slack v. McDaniel, 529 U.S. 473 (2000) and Barefoot v. Estelle, 463 U.S. 880 (1983)). Petitioner does not have to show "that he should prevail on the merits. He has already failed in that endeavor." Lambright, 220 F.3d at 1025 (citing Barefoot, 463 U.S. at 893 n.4).
I. Claim 1 - Lack of Written Jury Instruction
Petitioner first argues that the California Superior Court violated his due process rights when it refused to provide the jury with a written instruction on duress. (Application at 5.) In order for the Court to certify an appeal on this issue, Petitioner must establish that reasonable jurists could debate whether the omission of the written instruction violated his due process rights. Lambright, 220 F.3d at 1025.
Petitioner points out in the Application that the trial court told the jury to "go by what you read here in the written jury instructions." (Application at 6.) None of the prosecution's requested instructions were omitted from the written instructions. (Application at 6.) In sum, Petitioner argues that, when viewed together, the omission of a written duress instruction and the inclusion of all the prosecution's requested written instructions, in addition to the trial court's admonition, could have led the jury to disregard the oral instruction on duress. (Application at 7.) In the Order, the Court noted that the trial court gave the jury a correct oral instruction on duress. (Order at 5-6.) Furthermore, the Court found that the instruction adequately covered the defense theory of the case. (Order at 6); see Ragsdell v. S. Pac. Transp. Co., 688 F.2d 1281, 1282 (9th Cir. 1982).
In analyzing Petitioner's claim, the Court must view the jury instructions as a whole and decide if they would have misled the jury or if they stated the law incorrectly. Reed v. Hoy, 909 F.2d 324, 326 (9th Cir. 1989). To constitute reversible error, such instructions must have prejudiced the objecting party. Id. Viewing the instructions as a whole, the Court found that no unconstitutional prejudice occurred (Order at 7). However, reasonable jurists could debate whether the judge's instruction that the jury "go by" the written instructions could have caused them to erroneously disregard the duress instruction. In addition, even though an omitted instruction is not as likely to be as prejudicial as an erroneous statement of the law, Henderson v., 431 U.S. 145, 155 (1977), reasonable jurists could debate whether the omission prejudiced Petitioner since the omitted written instruction concerned his only defense. Therefore, the Court FINDS that Petitioner has made a substantial showing of the denial of a constitutional right with respect to this claim and GRANTS a certificate of appealability forthis
II. Claim 2 - Prosecutorial Discrimination
Petitioner next argues that the Superior Court erroneously allowed the prosecution to use three peremptory challenges to remove African-American prospective jurors. (Application at 8-9.) Since a trial court's ruling on discriminatory intent is a factual finding, it is given deference unless it is clearly erroneous. See Snyder v. Louisiana, 1 ...