The opinion of the court was delivered by: Arthur L. Alarcón United States Circuit Judge Sitting by Designation
On February 17, 2009, this court denied Petitioner Kenneth Lee Martinez' ("Petitioner") application for a writ of habeas corpus. (Doc. Nos. 74, 91.) Petitioner timely filed a notice of appeal and an application for a certificate of appealability. (Doc. Nos. 94, 95.) Petitioner did not seek to certify a particular issue. Instead, Petitioner seeks to appeal all nine claims raised in his application for a writ of habeas corpus.*fn1
Before Petitioner can appeal this court's judgment, a certificate of appealability must issue to provide the Ninth Circuit jurisdiction to consider this appeal. 28 U.S.C. § 2253(c)(1); Fed. R. App. P. 22(b)(1). "[A] state prisoner seeking a writ of habeas corpus has no absolute entitlement to appeal a district court's denial of his petition." Miller-El v. Cockrell, 537 U.S. 322, 335 (2003); 28 U.S.C. § 2253. A certificate of appealability may issue under 28 U.S.C. § 2253 "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). "Under the controlling standard, a petitioner must sho[w] that reasonable jurists could debate whether . . . the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further." Miller-El, 537 U.S. at 336 (internal quotations omitted). The Court must either issue a certificate of appealability or must state the reasons why a certificate should not issue. Fed. R. App. P. 22(b)(1).
For the reasons set forth in this court's denial of Petitioner's application for writ of habeas corpus, (doc. no. 91), and reiterated in part below, Petitioner fails to make a substantial showing that his constitutional rights were infringed upon. Accordingly, a certificate of appealability shall not issue.
An application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254(a) "shall not be granted with respect to any claim that was adjudicated on the merits" in state court unless the adjudication of the claim:
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
Petitioner first contended that his conviction violated the Fifth Amendment's protection against double jeopardy because the five assault with deadly weapons counts, corporal injury on a cohabitant, forcible rape, forcible oral copulation, criminal threats, dissuading a witness by force or fear, and false imprisonment by violence were simply lesser included offenses of his conviction of torture. This court explained that each of these counts required the prosecution to establish elements that were not required to prove torture as charged in count one and, accordingly, no violation of the Double Jeopardy Clause occurred.
Petitioner next contended that the trial court's failure to provide a unanimity instruction violated his right to due process. However, as this court explained, the unanimity instruction was not required because the events over the three-day period constituted a continuous course of conduct. See People v. Stankewitz, 270 Cal. Rptr. 817, 835 (Cal. 1990). Moreover, a challenge to a jury instruction solely as an error under state law does not state a claim cognizable in a federal habeas corpus action. See Estelle v. McGuire, 502 U.S. 62, 71-72 (1991) ("the fact that the instruction was allegedly incorrect under state law is not a basis for habeas relief"). The Constitution does not require unanimity in ...