The opinion of the court was delivered by: Hon. Thomas J. Whelan United States District Judge
ORDER DENYING APPLICATION FOR CERTIFICATE OF APPEALABILITY (Doc No. 30.)
On February 22, 2007, Petitioner Willie Dorsey Cantrell ("Cantrell" or "Petitioner"), a state prisoner proceeding pro se, commenced habeas corpus proceedings pursuant to 28 U.S.C. § 2254. (Doc. No. 1.) On July 7, 2008, United States Magistrate Judge Louisa S. Porter issued a Report and Recommendation ("Report") recommending that the Court deny Petitioner's habeas request on the merits. (Doc. No. 12.) On October 21, 2008, Petitioner filed Objections to the Report ("Objection"). (Doc. No. 16.) On January 14, 2009, the Court denied Petitioner's habeas petition in its entirety. (Doc. No. 17.)
Pending before the Court is Petitioner's Application for Certificate of Appealability ("COA"). (Doc. No. 20.) The Court decides the matter on the papers submitted and without oral argument. See S.D. Cal. Civ. R. 7.1.(d.1). For the reasons discussed below, the Court DENIES Petitioner's Application.
On April 28, 2004, following a jury trial, Petitioner was found guilty in San Diego Superior Court of four counts of committing a lewd act upon a child in violation of California Penal Code section 288(a). (Lodgment 1at 214-217).
The jury had not heard the proposed expert testimony of Dr. Thomas Lee regarding how a child's testimony can be influenced by adults. The jury had, however, heard evidence that Petitioner had sexually abused another child with whom he had previously lived. (Lodgment 7 at 260-269).
At sentencing, Petitioner admitted to five prior serious felony convictions. The trial court struck four of the Petitioner's prior convictions. (Lodgment 7 vol. 2 at 401). Accordingly, only one prior conviction remained for consideration in Petitioner's sentencing pursuant to California's recidivist sentencing statute. To justify striking the priors, the trial court cited the "washout period" during which Petitioner remained a law abiding citizen. Id. Moreover, the trial court emphasized that the priors were too attenuated in time for consideration because they all occurred more than twenty years before Petitioner perpetrated the present offense. Id. In sum, the trial court reasoned that treatment under the Three Strikes law would be disproportionate to the nature of the case and that he had "adequate sentencing parameters within which to punish" a one-strike defendant. Id. At the time of sentencing, Petitioner was 52 years old. Id.
Petitioner was then sentenced to 43 years in prison. (Lodgment 7 Vol. 2 at 371--411). The sentence included the upper-term sentence of eight years for count one, justified by the finding of two aggravating factors, and one-third the middle term sentence of six years on counts two, three, and four, all which doubled as a result of the one remaining strike. Id. Additionally, the trial court had found that counts two, three and four were separate incidents between which Petitioner had time to reflect upon his actions, and as such, imposed consecutive sentences. (Lodgment 7 vol. 2 at 408). The trial court then, under California law, imposed an additional fifteen years to account for the serious felony priors. Id.
On February 22, 2007, following the exhaustion of his direct appeal in the state courts of California, Petitioner commenced habeas corpus proceedings. (Doc. No. 1.) On January 14, 2009, the Court adopted the Magistrate Judge's Report and denied Petitioner's habeas petition on the merits. (Doc. No. 17.) Petitioner now moves for a COA. (Doc. No. 20.)
Under the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214 (1996) ("AEDPA"), a state prisoner may not appeal the denial of a section 2254 habeas petition unless he obtains a COA 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 retain authority to issue COAs under the AEDPA).
In deciding whether to grant a COA, a court must either indicate the specific issues supporting a certificate or state reasons why a certificate is not warranted. Asrar, 116 F.3d at 1270. A court may issue 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). The Supreme Court has elaborated on the meaning of this requirement:
Where a district court has rejected the constitutional claims on the merits, the showing required to satisfy section 2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would find the district court's ...