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. 38.)
On June 20, 2006, Petitioner Christopher Steven Butler ("Petitioner"), a state prisoner proceeding pro se, commenced habeas corpus proceedings pursuant to 28 U.S.C. § 2254. (Doc. No. 1.) On July 22, 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. 34.) On August 22, 2008, Petitioner filed Objections to the Report ("Objection"). (Doc. No. 35.) And on October 10, 2008, the Court denied Petitioner's habeas petition in its entirety. (Doc. No. 36.)
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.
Petitioner was tried in San Diego Superior Court on eight charges stemming from his involvement in a bank robbery. (Report at 2.) During that proceeding, the trial court required Petitioner to wear a stun belt under his clothing. (Report at 5.) On July 1, 2002, the jury convicted Petitioner of two counts of kidnapping for ransom, conspiracy to kidnap the bank manager for the purpose of robbery, and robbery. (Doc. No. 1.) The jury deadlocked on the remaining four counts of kidnapping the bank manager to commit robbery, two counts of robbery of the bank manager, and residential burglary. (Report at 4.) The trial court sentenced Petitioner to three consecutive life terms plus sixty-four years. (Report at 5.)
Following his conviction and sentence, Petitioner directly appealed to the California Court of Appeal on three grounds: (1) that the trial court erred in failing to instruct the jurors on the required specific intent element of conspiracy to commit kidnapping for robbery; (2) that the trial court abused its discretion when it required Petitioner to wear a stun belt in court; and (3) that the trial court violated Petitioner's Sixth Amendment right to a jury trial when it imposed an upper term sentence for his robbery conviction based on aggravating factors not found by the jury. (Report at 5.) The Court of Appeal reversed Petitioner's conviction for conspiracy to commit kidnapping based on the trial court's failure to give proper jury instructions. (Report at 5.) The court also granted Petitioner's claim that he was sentenced in violation of his Sixth Amendment right in light of the United States Supreme Court's decision in Blakely v. Washington, 542 U.S. 296 (2004) (holding that any facts used to increase a defendant's sentence must be found by the jury beyond a reasonable doubt). (Report at 5.) However, the court rejected Petitioner's claim that the trial court denied him a fair trial by requiring him to wear a stun belt. (Report at 5.)
Petitioner then filed a petition for review before the California Supreme Court on the stun belt issue. (Report at 6.) The government also filed a petition for review as to whether Blakely applied to the issuance of upper-term sentences under California's sentencing scheme. (Report at 6.) The California Supreme Court denied Petitioner's motion for review, but granted and deferred the government's petition pending the disposition of two related cases involving similar Blakely issues. (Report at 6.)
On June 20, 2005, the California Supreme Court ruled that the state's sentencing laws did not violate the Sixth Amendment. People v. Black, 35 Cal. 4th 1238 (2005), vacated, 127 S.Ct. 1210 (2007). (Report at 6.) On September 7, 2005, the California Supreme Court remanded Petitioner's case to the Court of Appeal with directions to vacate its decision and reconsider Petitioner's sentence in light of the Black decision. (Report at 6.) On remand, the Court of Appeal found that Petitioner's sentence did not violate his Sixth Amendment right. (Report at 6.) The Court of Appeal then remanded the matter to the trial court for re-sentencing based on its reversal of the conspiracy to commit kidnapping charge. (Report at 6.) Petitioner filed a petition for review of the Court of Appeal's decision to the California Supreme Court, which was denied without comment. (Report at 6.) On remand, the Superior Court reversed one of Petitioner's life sentences for the conspiracy to commit kidnapping charge but confirmed the sentences for the remaining convictions. (Report at 6.)
On June 29, 2006, Petitioner filed a petition for writ of habeas corpus in San Diego Superior Court challenging the procedure by which he was re-sentenced. (Report at 6--7.) Petitioner claimed ineffective assistance of counsel and that the trial court violated his right to receive notice of, and be present at, his re-sentencing hearing. (Report at 7.) On September 1, 2006, the Superior Court rejected Petitioner's claims and denied his petition. (Report at 7.) Petitioner filed a second petition for writ of habeas at the California Court of Appeal alleging the same claims, which was denied on the merits. (Report at 7-8.) On February 9, 2007, Petitioner filed a third petition for writ of habeas corpus at the California Supreme Court, alleging the same claims and also that his due process rights were violated when the trial court conducted the re-sentencing hearing in his absence. (Report at 8.) On July 11, 2007 the California Supreme Court denied the petition without comment. (Report at 8.)
On June 20, 2006 Petitioner filed a federal petition for writ of habeas corpus. (Report at 8.) On September 14, 2007 Petitioner filed a First Amended Petition (the "Petition"). (Doc. No. 25.) On October 10, 2008, the Court denied Petitioner's habeas petition in its entirety. (Doc. No. 36.) And on November 3, 2008, Petitioner filed the instant request for a COA. (Doc. No. 38.)
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 assessment of the constitutional claims debatable or wrong.
Slack v. McDaniel, 529 U.S. 473, 484 (2000) ...