The opinion of the court was delivered by: Barbara Jacobs Rothstein U.S. District Court Judge
ORDER DENYING REQUEST FOR A CERTIFICATE OF APPEALABILITY
This matter comes before the court on Petitioner's Request for a Certificate of Appealability. (Dkt. No. 25.) The court hereby DENIES the request, for the reasons described below.
On February 11, 2004, a jury found Petitioner Timothy Lincoln guilty of three counts of lewd and lascivious touching of his daughter, involving three separation incidents, in violation of California Penal Code § 288(a). On July 6, 2004, the trial court sentenced Petitioner to an aggregate term of seven years in state prison. Execution of the sentence was suspended and Petitioner was placed on 12 years of formal probation with the conditions that he serve one year in the county jail, participate in both individual and family counseling, and register as a sex offender. On April 10, 2007, Petitioner filed a petition for writ of habeas corpus in which he argued that his conviction should be overturned because he had been denied effective assistance of counsel. (Dkt. No. 1.) In addition, Petitioner also claimed that he had been denied his right "to be confronted with the witnesses against him" as afforded to him by the Confrontation Clause of the Sixth Amendment. The petition was denied on April 16, 2009 and Petitioner filed a timely notice of appeal. (Dkt. Nos. 21 and 23.) Thereafter, Petitioner filed the present request for a certificate of appealability on May 14, 2009. (Dkt. No. 25.)
A certificate of appealability is required to appeal "the final order in a habeas proceeding in which the detention complained of arises out of process issued by a state court." See Wilson v. Bellequ, 554 F.3d 816, 824 (9th Cir. 2009). A district court may issue a certificate "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). See also Belleque, 554 F.3d at 825--26. The certificate-of-appealability requirement "constitutes a gatekeeping mechanism that prevents [federal courts] from devoting judicial resources on frivolous issues while at the same time affording habeas petitioners an opportunity to persuade [courts] through briefing and argument of the potential merit of issues that may appear, at first glance, to lack merit." Lambright v. Stewart, 220 F.3d 1022, 1025 (9th Cir. 2000).
The standard for a certificate of appealability is a "modest standard." Lambright v. Stewart, 220 F.3d 1022 (9th Cir. 2000). Courts "must be careful to avoid conflating the standard for permission to appeal with the standard for obtaining a writ of habeas corpus." Id. at 1025.
"[O]bviously the petitioner need not show that he should prevail on the merits since he has already failed in the endeavor." Barefoot v. Estelle, 463 U.S. 880, 893 n. 4 (internal quotation marks and citations omitted). "Indeed, a claim can be debatable even though every jurist of reason might agree, after the COA has been granted and the case has received full consideration, that [the] petitioner will not prevail." Miller-El, 537 U.S. at 338.
B. The Confrontation Clause Claim
In his habeas petition, Petitioner argued that his Confrontation Clause rights were violated by the trial court's admission of the victim's out-of-court statements concerning Petitioner touching his own "private area" and concerning a second specific incident of touching the victim's "private area"-incidents that she did not testify to at trial. Petitioner contended that the admission of the out-of-court statements had a "substantial and injurious effect or influence in determining the jury's verdict" because it was the only evidence that Petitioner had the requisite sexual intent in touching the victim. (Dkt. No. 17 at 7). Petitioner also argued that the statements formed the sole evidence for one of the three counts of lewd and lascivious touching for which he was convicted.
Petitioner raised this issue on direct review in state court and the California Court of Appeal held that there was no Confrontation Clause violation in the admission of victim's out-of-court statements because she had appeared at trial and was subject to cross-examination.
People v. Lincoln, 2006 WL 11337, *4 (Cal.App.3 Dist., Jan. 3, 2006). Relying on the Supreme Court's ruling in Crawford v. Washington, 541 U.S. 36 (2004), this court determined that the state court decisions rejecting Petitioner's Confrontation Clause claim was neither contrary to, or an unreasonable application of, Supreme Court precedent. Crawford, 541 U.S. at 59, fn. 9 (stating that when a declarant appears for cross-examination ...