The opinion of the court was delivered by: Hon. Napoleon A. Jones, Jr.
ORDER DENYING PETITIONER'S REQUEST FOR CERTIFICATE OF APPEALABILITY
Petitioner James Allen Simonton ("Petitioner"), a California state prisoner proceeding pro se, filed a petition for writ of habeas corpus ("Petition") challenging his conviction pursuant to 28 U.S.C. § 2254. [Doc. No. 1.] Pursuant to 28 U.S.C. § 636(b)(1) and CivLR HC.2 of this District, Magistrate Judge Leo S. Papas filed a Report and Recommendation ("R&R") recommending that the Court deny the Petition. [Doc. No. 17.] Petitioner filed objections to the Report. [Doc. No. 23.] This Court subsequently overruled Petitioner's objections, adopted the Report, and denied the Petition. [Doc. No. 25.] Petitioner now seeks a certificate of appealability (COA) pursuant to 28 U.S.C. § 2253 and Federal Rules of Appellate Procedure 22(b). For the reasons set forth below, this Court now DENIES Petitioner's request for a certificate of appealability.
A state prisoner may not appeal the denial of a section 2254 habeas petition unless he obtains a certificate of appealability from a district or circuit judge. 28 U.S.C. § 2253(c)(1)(A). In deciding whether to grant a certificate of appealability, a court must either indicate the specific issues supporting a certificate or state reasons a certificate is not warranted. See United States v. Asrar, 116 F.3d 1268, 1270 (9th Cir. 1997). 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, a 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. Steward, 220 F.3d 1022, 1024-25 (9th Cir 2000) (internal citations omitted). A petitioner does not have to show that he "should prevail on the merits [because] [h]e has already failed that endeavor." Id. (citing Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983)).
Petitioner filed a petition for a writ of habeas corpus on March 8, 2007 raising eight grounds for relief [doc. no. 1]:
(1) His due process rights were violated when the trial court improperly instructed the jury;
(2) His due process rights were violated by the admission of certain expert testimony;
(3) His due process rights were violated because there was insufficient evidence to support convictions on counts 8 and 9;
(4) His due process rights were violated because he was tried before a biased judge;
(5) His due process rights were violated by the prosecutor's misconduct;
(6)His 6th Amendment right to effective assistance of counsel was violated by both trial and appellate counsel;
(7) His due process rights were violated because his convictions for counts 6 and 7, and his convictions for counts 8 and 9, were multiplicitous; and
(8) His due process rights were violated by the admission of evidence of uncharged acts and the testimony of one of the victims.
This Court, in its order denying Petitioner's petition for writ of habeas corpus, found Grounds One, Five, Seven, and Eight are all procedurally barred under the contemporaneous objection rule and
Dixon rule.*fn1 Petitioner previously admitted that Grounds One, Five and Seven are procedurally barred, yet argues in his request for a COA that exceptions Petitioner raised to these procedural bars were never addressed or waived. [Doc. No. 27.] Referencing earlier documents, Petitioner argues that these grounds are still reviewable under ineffective assistance of counsel and miscarriage of justice exceptions. [Doc. No. 15.] Additionally, Petitioner asserts that Ground Eight is not barred for the same reasons. Id.
"The procedural default doctrine 'bar[s] federal habeas when a state court declines to address a prisoner's federal claims because the prisoner has failed to meet a state procedural requirement.'" Calderon v. United States District Court (Bean), 96 F. 3d 1126, 1129 (9th Cir. 1996) (quoting Colemen v. Thompson, 501 U.S. 722, 729 (1991)). The doctrine "is a specific application of the general adequate and independent state grounds doctrine." Bean, 96 F.3d at 1129 (quoting Wells v. Maass, 28 F.3d 1005, 1008 (9th Cir. 1994)). Under the adequate and independent state grounds doctrine, federal courts "will not review a question of federal law decided by a state court if the decision of that court rests on a state law ground that is independent of the federal question and adequate to support judgment." Bean, 96 F.3d at 1129 (quoting Coleman, 501 U.S. at 729); see also Hill v. Roe, 298 F.3d 796, 798 (9th Cir. 2002). The state bears the burden of proving an independent and adequate procedural default. Bennet v. Mueller, 322 F.3d 573, 586 (9th Cir. 2003). Furthermore, the state procedural rule must be clear and "well established at the time of the petitioner's purported default." Bean, 96 F.3d at 1129 (quoting Wells, 28 F.3d at 1010).
Once the state meets its burden, federal courts are foreclosed from reviewing the claim(s) unless the petitioner can (1) "demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or (2) demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice." See Coleman, 501 U.S. at 750. "Cause" is a legitimate excuse for the default, and "prejudice" is actual harm resulting from the alleged constitutional violation. Thomas v. Lewis, 945 F.2d 1119, 1123 (9th Cir. 1991). The miscarriage of justice exception is limited to extraordinary cases where the petitioner asserts his innocence and establishes ...