The opinion of the court was delivered by: Irma E. Gonzalez, Chief Judge United States District Court
ORDER: (1) GRANTING IN PART PETITIONER'S APPLICATION FOR CERTIFICATE OF APPEALABILITY ) (2) GRANTING MOTION FOR LEAVE TO APPEAL IN FORMA PAUPERIS
Petitioner Richard Earl George ("Petitioner"), a state prisoner, filed a Petition for Writ of Habeas Corpus with this Court, challenging his conviction pursuant to 28 U.S.C. § 2254 on November 19, 2007. (Pet. 1.) On November 7, 2008, pursuant to 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(b)(3), Magistrate Judge Louisa S. Porter submitted a Report and Recommendation ("R&R"), recommending that this Court deny the Petition in its entirety. [Doc. No. 15.] Petitioner timely filed objections to the R&R. (Objection 1.) On February 4, 2009, Petitioner made a request for appointment of counsel, pursuant to 18 U.S.C. § 3006A. [Doc. No. 23.] The Court subsequently overruled Petitioner's objections, denied Petitioner's motion for request for appointment of counsel, adopted the R&R, and denied the Petition. (Order 26.) Petitioner now seeks a certificate of appealability pursuant to 28 U.S.C. § 2253 and Fed. R. App. P. 22(b). [Doc. No. 28.] Additionally, he seeks leave to proceed in forma pauperis. [Id.] For the reasons set forth below, the Court GRANTS Petitioner's Application as to Claim 1. The Court DENIES Petitioner's Application as to Claims 2, 3, 4, and 5. Additionally, the Court GRANTS Petitioner's Motion for Leave to Appeal in Forma Pauperis.
A state prisoner may not appeal the denial of a § 2254 habeas petition unless he obtains a certificate of appealability 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). In deciding whether to grant a certificate of appealability, a court must either indicate the specific issues supporting a certificate or state reasons why a certificate is not warranted. See Asrar, 116 F.3d at 1270. A certificate of appealability 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; (2) a court could resolve the issues in a different manner; or (3) 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).
Petitioner seeks a Certificate of Appealability on five issues: 1) whether the trial court improperly admitted evidence of a prior choking incident; 2) whether the trial court improperly admitted evidence of an unduly suggestive photo lineup; 3) whether the trial court improperly admitted unreliable DNA evidence; 4) whether insufficient evidence corroborated Petitioner's accomplice's testimony; and 5) whether the cumulative effect of the errors at Petitioner's trial deprived him of due process. The Court will discuss each issue in turn.
A. Claim One - Improper Evidence of a Prior Choking Incident Petitioner first argues the trial court improperly admitted evidence of a prior choking
incident, violating his right to due process. (Application 6.) In order for the Court to certify an appeal on this issue, Petitioner must establish that reasonable jurists could debate whether the omission of the written instruction violated his due process rights. Lambright v. Stewart, 220 F.3d 1022, 1025 (9th Cir. 2000).
The trial court admitted a letter in which Petitioner's accomplice wrote Petitioner choked her, attempting to kill her, in the past. (Application 6.) In his Application, Petitioner contends the letter is highly prejudicial, of limited probative value, and admitted as propensity evidence in violation of Cal. Evid. Code § 352 and Cal. Evid. Code § 1101(a). The Court held the choking evidence supported at least one permissible inference unrelated to Petitioner's bad character or propensity to commit the charged crimes. (Order 11.) Specifically, the Court noted the choking evidence was relevant to show Petitioner's accomplice's motive to initially lie to the police.
Cal. Evid. Code § 352 grants courts discretion to exclude evidence if its probative value is substantially outweighed by the probability that its admission will: (1) necessitate undue consumption of time; or (2) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury. Cal. Evid. Code § 1101(a) generally prohibits introducing evidence a defendant committed acts, other than those charged, to prove he or she is a person of bad character or has a criminal disposition. Cal. Evid. Code § 1101(b), however, allows introduction of such evidence to prove issues such as identity, intent, motive, and lack of mistake or accident. Reasonable jurists could debate whether the evidence of the choking incident was introduced to show Petitioner is of bad character or has a criminal disposition, prohibited by § 1101(a), or whether it was introduced to prove issues such as identity, intent, motive and lack of mistake or accident, permissive under § 1101(b). Accordingly, the Court GRANTS a certificate of appealability in regard to Petitioner's Claim One.
B. Claim Two - Photo Lineup
Petitioner claims the trial court improperly admitted evidence of an unduly suggestive photo lineup, violating his right to due process. (Application 6.) Specifically, he argues the photograph had a green background while the other photographs had a blue background, and therefore the photo lineup was unduly suggestive. (Id.) The Court found the photo lineup was not suggestive. (Order 15.) Even assuming arguendo the photo lineup was suggestive, the Court determined Petitioner failed to show there was a substantial likelihood of misidentification. (Id.)
Petitioner can support his claim if he can establish that reasonable jurists could disagree as to whether the photo lineup was unduly suggestive. See Lambright, 220 F.3d at 1025. The Ninth Circuit has determined that while variant background hues arguably amount to an identifiable difference in appearance, these "[i]nsubstantial differences... do not in themselves create an impermissible suggestion that the defendant is the offender." United States v. Burdeau, 168 F.3d 352, 357 (9th Cir. 1999). ...