The opinion of the court was delivered by: John A. Houston United States District Judge
ORDER DENYING CERTIFICATE OF APPEALABILITY
On September 4, 2008, petitioner, a state prisoner, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The matter was referred to the Honorable Peter C. Lewis, United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)B) and Local Rule HC.2(a). Judge Lewis issued a report and recommendation ("report") on May 7, 2009, recommending that this Court dismiss the petition, finding that the petitioner was not entitled to relief on his claims. Petitioner filed objections to the magistrate judge's findings and conclusions contained in the report on June 9, 2009. This Court subsequently overruled petitioner's objections, adopted the report it its entirety and dismissed the petition for not raising a claim entitled to relief.
On December 28, 2009, petitioner filed a notice of appeal of the Court's order. Although petitioner does not expressly seek a certificate of appealability, this Court sua sponte considers whether a certificate of appealability should be granted. See Fed.R.App.P. 22(b); United States v. Asrar, 116 F.3d 1268, 1270 (9th Cir. 1997)("If no express request is made for a certificate of appealability, the notice of appeal shall be deemed to constitute a request for certificate).
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 threshold showing, 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) andBarefoot v. Estelle, 463 U.S. 880 (1983)).
Here, the petitioner presents two issues: 1) whether petitioner was denied his rights to Due Process and a fair trial because members of the jury saw the petitioner in jail clothing; and 2) whether petitioner's right to effective assistance of counsel as guaranteed by the Sixth Amendment was violated when his attorney failed to object to his presence at trial in jail clothing. As to petitioner's first claim, a criminal defendant may not be compelled to appear in front of a jury wearing identifiable prison clothing because it could impair the presumption of innocence. Estelle v. Williams, 425 U.S. 501, 503 (1976); United States v. Rogers, 769 F.2d 1418, 1423 (9th Cir. 1985). However, this Court found that the petitioner's failure to make a timely objection regarding his clothing during the trial was sufficient to negate the presence of compulsion that is necessary to establish a constitutional violation. See Doc. # 14 at 8-9 (citing Estelle, 425 U.S. at 512-13 (1976)).
As to petitioner's alternative claim, this Court found that petitioner's right to effective counsel was not violated because petitioner did not show he was prejudiced by his counsel's failure to make an objection. See Doc # 14 at 12. Furthermore, this Court found petitioner provided no proof there was a reasonable probability the outcome of his trial would have been different had he been given a new set of civilian clothes. See Doc # 14 at12. Because of the foregoing reasons, petitioner cannot show "a probability sufficient to undermine confidence in the outcome [of the trial]" and therefore cannot prove a violation of his right to effective counsel. Strickland v. Washington, 466 U.S. 668, 694 (1984).
This Court finds petitioner's claims do not present a question of substance debatable among jurists, nor do the claims raise serious and substantial legal concerns that implicate his constitutional rights. Lambright, 220 F.3d at 1024-25. Accordingly this Court DENIES a certificate of appealability as to the claims presented.
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