ORDER DENYING CERTIFICATE OF APPEALABILITY
Petitioner Jesus Bustamante filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 asserting nine claims. After full briefing, the magistrate judge entered a Report and Recommendation ("Report") under 28 U.S.C. § 636(b)(1)(B) and Civil Local Rule 72.3 that recommended the petition be denied. Petitioner timely objected to the Report with respect to his Claim 2 concerning three particular jury instructions; Claim 6 -- prosecutorial misconduct; Claim 7 -- ineffective assistance of trial counsel: and Claim 8 -- ineffective assistance of appellate counsel. But petitioner did not object to other portions of the Report.*fn1
The Court made a de novo determination of those portions of the report to which petitioner objected. 28 U.S.C. § 636(b)(1). After a thorough review of the entire record in this case and the parties' arguments, the Court adopted the Report in its entirety. Petitioner filed a notice of appeal on September 29, 2009. (See docket no. 77.) In a footnote to the notice of appeal, petitioner states that his "legal assistant is now preparing the certificate of appealability and it will be mailed forthwith as soon as completed." On October 15, 2009, petitioner requested and was granted an extension of time in which to file his application for a certificate of appealability ("COA"). [doc. #] On the date his application was due, petitioner instead filed a motion for appointment of counsel and declaration of indigency. [doc. #80]
Because petitioner has not filed an application for a COA within the extended time provided, the court construes petitioner's notice of appeal as a request for a certificate of appealability. See 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 a certificate.").
A Certificate of Appealability ("COA") is required under 28 U.S.C. § 2253 before a petitioner can pursue an appeal. A COA will issue when the petitioner makes a "substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 478 (2000) (after April 24, 1996, the right to appeal is governed by COA requirements of 28 U.S.C. § 2253(c)). When a district court has rejected constitutional claims on the merits, 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. Steward, 220 F.3d 1022, 1024-25 (9th Cir. 2000).
Bustamante contends that the trial court failed to properly instruct on the elements of assault and assault with a deadly weapon (aggravated assault); to sua sponte instruct the jury that they could consider manslaughter as a lesser included offense; and to instruct on accomplice testimony.
1. Assault/Assault with a Deadly Weapon
Petitioner argued that an element of the crimes of assault and aggravated assault require the specific intent to commit a battery and because the instructions did not require the jury to find the intent to commit battery, the instructions given was a violation of his due process rights.
Under the Fourteenth Amendment, due process requires that "every fact necessary to constitute the crime with which [the defendant] is charged" be proved beyond a reasonable doubt. In re Winship, 397 U.S. 358, 364 (1970). If a trial court fails to properly instruct the jury regarding an element of the charged crime, the court commits a constitutional error that deprives the defendant of due process. See, e.g., Conde v. Henry, 198 F.3d 734, 740 (9th Cir. 1999).
Under California law, battery and assault are general intent crimes and the intent to commit battery is not an element of the crimes of assault or aggravated assault. The trial court instructed the jury on all the elements of assault and aggravated assault; therefore, the instructions did not violate petitioner's due process rights and petitioner has not demonstrated entitlement to a COA on this claim.
2. Lesser Included Offense Instruction
Petitioner contended that the trial court failed to instruct, sua sponte, on the lesser included offense of manslaughter. There is no clearly established federal law that requires a state trial court to give a lesser included offense instruction. See 28 U.S.C. § 2254(d)(1); Solis v. Garcia, 219 F.3d 922, 929 (9th Cir. 2000) (per curiam) (in non-capital case, failure of state court to instruct on lesser included offense does not alone present a federal constitutional question cognizable in a federal habeas corpus proceeding), cert. denied, 534 U.S. 839 (2001); Windham v. Merkle, 163 F.3d 1092, 1106 (9th Cir. 1998) (failure of state trial court to instruct on lesser included offenses in non-capital case does not present federal constitutional question), cert. denied, 541 U.S. 950 (2004)).
But a state court's jury instructions violate due process if they deny the criminal defendant "a meaningful opportunity to present a complete defense." Clark v. Brown, 450 F.3d 898, 904 (9th Cir. 2006), cert. denied by Ayers v. Clark, 549 U.S. 1027 (2006) (quoting California v. Trombetta, 467 U.S. 479, 485 (1984)).
Here petitioner was not denied a meaningful opportunity to present a complete defense. This issue cannot be resolved in a different manner and is not debatable among jurist of reason. Accordingly, a COA will not issue.
3. Accomplice Instruction
Petitioner complained that two witnesses were actually accomplices to the killing which required the trial court to instruct the jury to view their testimony with caution or to require corroboration to support his conviction. However, petitioner made no showing that the jury's determination would have been different had the jury been instructed that it could not rely on Truehitt's and Jacobo's testimony in the absence of corroboration. Accordingly, the lack of an accomplice instruction did not so infect petitioner's trial as to result in a violation of due process. This conclusion is not debatable among jurists of reason. ...