The opinion of the court was delivered by: Honorable Larry Alanburns United States District Judge
ORDER DENYING CERTIFICATE OF APPEALABILITY
On March 2, 2007, Petitioner filed a petition in this Court seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He argued the evidence presented at his trial in state court was insufficient to support a conviction, the state court improperly admitted evidence of prior crimes, and the state court improperly sentenced him to consecutive terms. Pursuant to 28 U.S.C. § 636 and Civil Local Rule 72.1, this matter was referred to Magistrate Judge Nita Stormes for report and recommendation.
Respondent filed an answer on June 4, 2007. Although Petitioner was ordered to file a traverse, he never did so. On December 7, 2007, Judge Stormes issued her report and recommendation (the "R&R"), discussing in detail the evidence presented at trial, and recommending denial of the writ. The parties were given an opportunity to file objections to the R&R.
Petitioner then filed a series of objections, which were all accepted for filing, including a late-filed traverse. Petitioner did not seek leave to supplement these further, nor did he seek any additional time in which to do so. The Court construed all Petitioner's filings as his objections to the R&R, considered them, overruled all objections, adopted the R&R, and on April 23, 2009, issued an order denying the writ.
Petitioner then filed a document styled "Order Adopting Report and Recommendation," (the "NOA") which the Court construes as a notice of appeal and request for certificate of appealability. To this, he attached a number of his medical records.
A certificate of appealability ("COA") 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; or (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).
In the NOA, Petitioner appears to be raising either two or three issues. First, he says his medical problems prevent him from thinking clearly. The Court construes this as an argument that he should have been granted more time in which to object to the R&R. Second, he raises the question of the sufficiency of the evidence. Third, he raises what might either be part of his sufficiency of the evidence argument or a new argument he has not raised before. Finally, he moved for appointment of counsel. The Court considers each of these issues in turn.
B. Petitioner's Medical Problems
According to the medical records Petitioner attached to the NOA, the altercation in late July, 2007 resulted in injury to Petitioner's back, elbow, and head, including contusions and resultant back pain. He was prescribed Motrin. Recommended treatment for the contusions was rest and elevation of the affected areas, ice packs, and compression bandages. In the fall of 2006, Petitioner had a hematoma excised from his forehead, and as late as the fall of 2008, he suffered from dermatitis. The attached records disclose no other medical problems.
In his first objections to the R&R, filed nunc pro tunc to December 26, 2007 (docket no. 11), Petitioner said he had been unable to prepare adequate objections to the R&R because he was being held in administrative segregation without access to the prison library or his legal papers. He did not mention any health problems. Among the supporting materials, Petitioner attached records of an administrative hearing on November 16, 2008, where he first stated he was in good health and ready to proceed with the hearing. (Docket no. 11 at page 7.)
Petitioner then submitted an ex parte application, which was filed nunc pro tunc to January 2, 2009, in which he sought an extension of time to file objections. The Court construed this as seeking additional time to supplement his objections. In his application, Petitioner cited denial of access to the prison library as well as an administrative complaint he was pursuing against staff members, apparently in connection with the July, 2007 incident. Although he ...