UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA AT SACRAMENTO
December 15, 2009
BERNARDO VASQUEZ AGUIRRE, PETITIONER,
ROSEANNE CAMPBELL, ET AL.,*FN1 RESPONDENTS.
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.
1. Unexhausted Claims
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.
2. Carbon Copy Counts
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.
3. Aggravated Assault
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 to the issue of sufficiency of the evidence to show aggravated sexual assault, as opposed to lewd acts upon a child.
4. Post-Arrest Silence
The Court extensively discussed the issue of post-arrest silence in its prior Order. (See Dkt. No. 33 at 12--18.) Focusing on the second prong in the AEDPA analysis, see 28 U.S.C. § 2254(d), the Court previously determined that the state courts did not unreasonably apply Griffin v. California, 380 U.S. 609 (1988), in holding that Petitioner's partial silence in a custodial interrogation could be used against him as substantive evidence of guilt. (See Dkt. No. 33 at 12--18.) In large part, this conclusion was compelled by the narrow scope of revuew under the AEDPA.
Generally, even if a question is well-settled in the Ninth Circuit, a constitutional claim is debatable if another circuit has issued a conflicting ruling. See Lambright, 220 F.3d at 1025-- 26. The issue of partial silence is not well settled in the Ninth Circuit, and courts in the Tenth Circuit have held that partial silence is not a waiver of Miranda rights. See United States v. Canterbury, 985 F.2d 483 (10th Cir. 1993). Petitioner points to this disagreement and also asserts that he requested a lawyer at another point in his custody. Thus, reasonable jurists could decide differently, and the Court GRANTS the certificate of appealability as to this issue.
5. Ineffective Assistance of Counsel
Petitioner claims that he exhausted the claim for ineffective assistance of counsel in the lower courts. (Dkt. No. 37 at 3.) But Petitioner presents no evidence that he raised this issue before the California courts in any of his prior proceedings, and it is apparent from the record that he has not done so. (See Dkt. No. 33 at 20.) Even if he had, however, this fact would be immaterial; the Court decided his ineffective assistance of counsel claim on the merits. (See id. at 20--21.) The only ineffective assistance claim that could matter for purposes of this putative appeal is his claim that his counsel failed to raise the "carbon copy counts" in the indictment. But because the Court considered this claim on the merits, as well, and did not hinge its analysis on failure to exhaust, there was no prejudice even if counsel failed to raise it. Strickland v. Washington, 466 U.S. 668, 691--93 (1984). The certificate of appealability is DENIED as to this claim.
For the foregoing reasons, the Certificate of Appealability is GRANTED as to Petitioner's First Claim (sufficiency of the evidence), Petitioner's Fourth Claim (use of silence as substantive evidence of guilt), and Petitioner's Fifth Claim (inadequacy of the information), but is DENIED as to all other claims.
John C. Coughenour UNITED STATES DISTRICT JUDGE