The opinion of the court was delivered by: The Honorable John C. Coughenour
This matter comes before the Court on Petitioner's Request for a Certificate of Appealability. (Dkt. No. 37.) The Court hereby GRANTS IN PART and DENIES IN PART the request, for the reasons described below.
Petitioner, a state prisoner proceeding pro se, has timely filed a notice of appeal of this Court's October 16, 2009 dismissal of his application for a writ of habeas corpus. (Dkt. No. 36.) Before petitioner can appeal this decision, a certificate of appealability must issue. 28 U.S.C. § 2253(c); FED. R. APP. P. 22(b).
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). This standard requires the petitioner to show 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). This means that the assessment is debatable among jurists of reason, a court could resolve the issues in a different manner, or the questions are adequate to deserve encouragement to proceed further. Lambright v. Stewart, 220 F.3d 1022, 1024--25 (9th Cir. 2000). The court must either issue a certificate of appealability indicating which issues satisfy the required showing or must state the reasons why such a certificate should not issue. FED. R. APP. P. 22(b).
A certificate of appealability is granted on an issue-by-issue basis. 28 U.S.C. § 2253(c); Hiivala v. Wood, 195 F.3d 1098, 1103 (9th Cir. 1999) (per curiam).Construing his papers liberally, see Laws v. Lamarque,351 F.3d 919, 924 (9th Cir. 2003), Petitioner raises five grounds on which he seeks appeal. The Court considers them in turn.
Petitioner spends a significant amount of time in his Request arguing that his claims have been properly exhausted in state court. (See Dkt. No. 37 at 1--2.) This is perplexing, because the Court specifically found that Petitioner had properly exhausted both direct appeals and state habeas proceedings. (Dkt. No. 33 at 3 ("After exhausting his direct appeals . . .) & 3 n.3 ("Respondents concede that Petitioner has now exhausted state habeas remedies . . .).) Petitioner apparently contests the Court's citation to James v. Reese, 546 F.2d 325, 327 (9th Cir. 1976), because he says that the case concerned unexhausted claims. (Dkt. No. 37 at 2.) But the proposition for which the Court cited James-that failure to instruct sua sponte on lesser included offenses fails to allege a federal cause of action-did not depend on lack of exhaustion. See James, 546 F.2d at 327 ("Although we need not reach the issue [because of Petitioner's failure to exhaust], we note that the district court correctly dismissed the petition pursuant to 28 U.S.C. § 1915(d) [which allows dismissal for failure to state a claim].") Because none of the Court's reasoning depended on exhaustion, Petitioner's Request is factually incorrect and the certificate of appealability is DENIED as to this issue.
Petitioner contends that his argument pertaining to the "carbon copy counts" have yet to be ruled on by the U.S. Supreme Court, and therefore may be decided in his favor. (Dkt. No. 37 at 2.) But the lack of Supreme Court direction implicates the limited scope of habeas review afforded by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which only allows a federal court to grant a state prisoner's habeas petition if the state court's adjudication (1) "was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court" or (2) "was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceedings." 28 U.S.C. § 2254(d) (emphasis added).
However, construing his papers liberally, Petitioner may be arguing that the indictment failed to inform the defendant of the charges that he must defend. United States v. Resendiz-Ponce, 549 U.S. 102, 108 (2007). Although the Court doubts that a reasonable jurist could find that Petitioner's Sixth Amendment right to notice about the nature and charges against him was violated in this case, the Court will certify this issue for appeal out of an abundance of caution. The certificate of appealability is GRANTED as to this issue.
Petitioner argues, cryptically, that "Petitioner's claim is not the lessor [sic] included offense, but the conviction of the aggravated offense that was used at trial." (Dkt. No. 37 at 2.) Presumably, Petitioner is contesting his conviction for aggravated sexual assault, which requires proof of force or duress. The Court discussed this issue in Section C of its Order, in considering the sufficiency of the evidence. (See Dkt. No. 33 at 6.) Petitioner argued that he should have only been convicted of non-forcible lewd acts upon a child, in violation of California Penal Code 288(a). (See Petition (Dkt. No. 9 at 5).)*fn2
The Court previously determined that, under the extremely limited scope of review afforded by Jackson v. Virginia, 443 U.S. 307 (1977) and the AEDPA, the prior courts to consider this claim were reasonable in concluding that the evidence was sufficient to find force or duress. This issue is appropriate for certification, as it implicates the Due Process Clause and reasonable minds might disagree. The Court hereby GRANTS the certificate of appealability as ...