The opinion of the court was delivered by: Fred Van Sickle Senior United States District Judge
ORDER DENYING REQUEST FOR CERTIFICATE OF APPEALABILITY
THIS MATTER comes before the Court on Petitioner's request for a certificate of appealability. (Ct. Rec. 41). Petitioner is represented by Charles M. Bonneau, Jr. Respondent is represented by Carlos Antonio Martinez.
On September 22, 2009, all five claims raised in the petition were denied. A notice of appeal has been filed. Petitioner requests the issuance of a certificate of appealability on three of the issues: the denial of his right to confrontation by the introduction of incriminatory statements of the non-testifying co-defendant, the denial of effective assistance of counsel by the decision not to call Petitioner as a witness in his own defense, and the denial of effective assistance of counsel by the failure to present additional available evidence that Quindt and Salcedo were responsible for the crimes.
The Court has reviewed the file and is fully informed. For the reasons set forth below, issuance of a certificate of appealability is DENIED.
"Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from . . . the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State court." 28 U.S.C. § 2253(c)(1)(A). A district court possesses the authority to issue a certificate of appealability. United States v. Asrar, 116 F.3d 1268, 1270 (9th Cir. 1997). The issuance of a certificate of appealability is a jurisdictional prerequisite to appeal. Gatlin v. M.K. Madding, 189 F.3d 882, 886 (9th Cir. 1999), cert. denied. 528 U.S. 1087 (2000). "A certificate of appealability may issue . . . only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2); Hiivala v. Wood, 195 F.3d 1098, 1104 (9th Cir. 1999).
Here, with respect to Petitioner's first claim, the Court noted that even if it assumed that evidence of Mr. Trujillo's confession was erroneously admitted in front of Petitioner's jury, the error in admitting the evidence is not a violation of Petitioner's confrontation clause rights because the error was harmless. As indicated by the Court, the confession was not important to the prosecution's case because the prosecution had other key witnesses that testified against Petitioner. The other witnesses provided sufficient testimony, which corroborated Mr. Trujillo's statements, and Petitioner was able to cross-examine the other witnesses. Even without a reference to Mr. Trujillo's confession, the prosecution's case was strong. Petitioner fails to make a substantial showing of the denial of a constitutional right on his confrontation clause claim.
The same is true for Petitioner's ineffective assistance of counsel claims. Petitioner has not made a substantial showing of the denial of a constitutional right on his claim that he was denied effective assistance of counsel when his trial counsel advised him not to testify and when his trial attorney failed "to present additional available evidence that Quindt and Salcedo were responsible for these crimes." In the absence of a substantial showing of a denial of a constitutional right on any of the claims raised, a certificate of appealability should not issue. Hiivala, 195 F.3d at 1104.
The Court being fully advised, IT IS HEREBY ORDERED that Petitioner's Request for Certificate of Appealability (Ct. Rec. 41) is DENIED.
IT IS SO ORDERED. The District Court Executive is directed to enter this order and furnish copies to counsel.
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