The opinion of the court was delivered by: Hon. Irma E. Gonzalez United States District Judge
ORDER: (1) GRANTING IN PART AND CERTIFICATE OF APPEALABILITY No. 48]; (2) DENYING MOTION FOR EXTENSION OF TIME TO FILE APPEAL AS MOOT [ECF No. 46]; and (3) DENYING MOTION FOR CERTIFICATE OF APPEALABILITY AS MOOT [ECF No. 44.] DENYING IN PART MOTION FOR
Petitioner, Tony Goodrum (hereinafter "Petitioner"), filed a Motion for Certificate of Appealability ("COA") to appeal the Court's dismissal of his Petition for Writ of Habeas Corpus in the present case. [ECF No. 46.] Pending before the Court is also Petitioner's Motion for Extension of Time to File Appeal [ECF No. 46], and a second Motion for Certificate of Appealability.*fn1 [ECF No. 48.] After reviewing Petitioner's Motion for Certificate of Appealability and the Response by Respondent, the Court GRANTS in part and DENIES in part Petitioner's Motion, DENIES Petitioner's Motion for Extension of Time to File Appeal as moot, and DENIES Petitioner's duplicative Motion for Certificate of Appealability as moot.
Petitioner has filed two Petitions for Writ of Habeas Corpus pursuant 28 U.S.C. §2254 in this Court challenging his San Diego Superior Court conviction in case number SCD170068. On April 23, 2007, Petitioner filed a petition in case number 07cv0752. (See Petition Goodrum v. Cate, 07cv0752 IEG (JMA) Apr. 23, 2007.) While the petition was pending, Petitioner filed an application for leave to file a second or successive petition with the Ninth Circuit Court of Appeals in which he raised claims he had not raised in his original petition. (See Application Goodrum v. Kramer, 07-72512 (9th Cir. Jun. 22, 2007).) The Ninth Circuit denied Petitioner's application "without prejudice to refiling should petitioner receive an unfavorable disposition of the first petition that is currently pending in the district court." (See Order Goodrum v. Kramer, 07-72512 Sep. 13, 2007.) On September 6, 2008, this Court denied the petition in case number 07cv0752. (See Order, Goodrum v. Cate, 07cv0752 IEG (JMA) Nov. 12, 2008 [ECF No. 31].) Petitioner filed a second application for leave to file a second or successive petition with the Ninth Circuit Court of Appeals on October 29, 2010, which was granted on August 31, 2011. (See Application for Leave to File Successive Petition, Goodrum v. Busby, 10-73336, Oct. 29, 2010; Order Goodrum v. Busby 10-73336, Aug. 13, 2011.)
Following the Ninth Circuit's order, Petitioner filed a Petition for Writ of Habeas Corpus in this Court on September 23, 2011, which was amended on November 9, 2011, in which he argued that he was entitled to bring new claims challenging the state court conviction he previously challenged in this Court because he had newly discovered evidence to support claims of ineffective assistance of counsel and sentencing error. [ECF Nos. 1, 10-1.] Of importance to the disposition of the current Motion, Petitioner argued in his new Petition that trial counsel was ineffective for failing to object to the trial court's refusal to instruct the jury regarding "defense of habitation," failing to object to an erroneous jury instruction which equated voluntary manslaughter with justifiable homicide, failing to adequately investigate and locate a key witness at the preliminary hearing stage, and for failing to investigate law enforcement misconduct regarding false preliminary hearing testimony, witness tampering and mishandling exculpatory evidence. (Id. at 67-69.)
On October 7, 2011, the parties were ordered by the Court to show cause as to whether the claims in the Petition met the requirements of 28 U.S.C. § 2244(b)(2)(B) for filing a second or successive petition. [ECF No. 3.] In his Reply, Petitioner stated that he was making claims of actual innocence, in addition to his other claims raised in the Petition, and contended he was entitled to move forward with his Petition regardless of whether it was subject to the standard for successive petitions set forth in 28 U.S.C. § 2244(b) or the actual innocence exception enunciated in Schlup v. Delo, 513 U.S. 298 (1995). (Reply 9.)*fn2
By Order dated June 13, 2012, the Court found that Petitioner did not satisfy the requirements of 28 U.S.C. § 2244(b)(2)(B) for filing a second or successive petition, and alternately determined that Petitioner could not proceed on his actual innocence claim under Schlup. [ECF No. 25.] The Court further denied Petitioner's request for discovery concerning law enforcement officers and denied his request for an evidentiary hearing.
On July 9, 2012, Petitioner filed a Motion for Relief from Judgment, which the Court denied by Order dated October 23, 2012. [ECF Nos. 35, 39.] On July 16, 2012, while his Motion for Relief from Judgment was pending, Petitioner filed a Motion for Certificate of Appealability, Notice of Appeal and a letter to the Court in which he stated that he filed the Motion for COA as a precautionary measure to protect his ability to file a timely appeal, but that he did not want the Court to file the Motion for COA if his Motion for Relief under Rule 60(b) provided additional time to file his appeal.*fn3 [ECF No. 43-1.] The Court filed this Motion for COA, despite Petitioner gaining additional time to file his appeal due to his Rule 60(b) motion, on November 26, 2012, noting it was originally submitted on July 16, 2012. [ECF No. 44.] On November 26, 2012, Petitioner filed a Motion for Extension of Time to File an Appeal. [ECF No. 46.] On November 28, 2012, Petitioner filed a second Motion for COA. [ECF No. 48.] In light of Petitioner's request that his first Motion for COA not be filed if the Rule 60(b) Motion provided additional time within which to appeal, it is evident that Petitioner did not want the Court to consider the first Motion for COA. Accordingly, the Court considers only the second Motion for COA.
II. CERTIFICATE OF APPEALABILITY
A state prisoner may not appeal the denial of a section 2254 habeas petition unless he obtains a certificate of appealability from a district or circuit judge. 28 U.S.C §2253(c)(1)(A). 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.A. §2253(c)(2). In deciding whether to grant a certificate of appealability, a court must either indicate the specific issues supporting a certificate or state reasons a certificate is not warranted. See United States v. Asrar, 116 F.3d 1268, 1270 (9th Cir. 1997). The analysis is more complex where, as in the present case, the district court denies the underlying Petition on procedural grounds without reaching the merits of the constitutional claims. In that instance, "a [certificate of appealability] should issue when the prisoner shows ... that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling." Slack v. McDaniel, 529 U.S. 473, 484 (2000) (emphasis added). Thus, Section 2253(c)(3) requires that the Court identify both the issue on which Goodrum made a substantial showing of the denial of a constitutional right and the debatable procedural ruling. Gonzalez v. Thaler, 132 S.Ct. 641, 648 (2012).
Petitioner contends that the Court should grant his request for a COA because he has made a substantial showing that he did not receive effective assistance of counsel as guaranteed by the constitution, and also that it is debatable whether the Court correctly ruled that his claims could not pass the Schlup actual innocence procedural threshold. (Mot. for COA 1, 3.)
A. Valid Constitutional claim
In determining whether a prisoner has made the requisite showing that a constitutional right has been denied for purposes of a COA, the district court must conduct "an overview of the claims in the habeas petition and a general assessment of their merits." Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). It is not necessary for a prisoner to demonstrate that he should prevail on the claims, but instead he must show that "the issues are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate 'to deserve encouragement to proceed further.'" Barefoot v. Estelle, 463 U.S. 880, 893 n. 4 (1983). However, "[t]his threshold inquiry does not require full consideration of the factual or legal bases adduced in support of the claims" but instead "[a] prisoner seeking a COA must prove '"something more than the absence of frivolity"' or the existence of mere 'good faith' on his or her part." Miller-El, 537 U.S. at 337-38 (citing Barefoot, supra, at 893).
Petitioner asserts in his Petition that he received ineffective
assistance of counsel at the preliminary hearing stage due to
counsel's failure to conduct investigation into the whereabouts of key
defense witnesses, Howard Herring aka "Polo," failure to investigate
misconduct by San Diego Police Department Detective Rivera, and
failure to investigate the destruction and improper preservation of
potentially exculpatory evidence by law enforcement. (Pet. 15-16, 28,
36.) Petitioner further claims counsel's trial performance was
deficient for his failure to object to the trial court's refusal to
instruct the jury regarding the home bill of rights and to the
constitutionally infirm instructions actually given.*fn4
(Id. at 12-13.) Finally, Petitioner contends that counsel
failed to cross-examine police officers about their failure to
properly preserve the metal pipe as evidence, and failed to move for a
mistrial regarding the destruction of that evidence.*fn5
(Id. at 89-90.)
1. Ineffective assistance of counsel
To establish ineffective assistance of counsel, a petitioner must first show his attorney's representation fell below an objective standard of reasonableness. Strickland v. Washington, 466 U.S. 668, 688 (1984). "This requires showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Id. at 687. He must also show he was prejudiced by counsel's errors. Prejudice can be demonstrated by a showing that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694; see also Fretwell v. Lockhart, 506 U.S. 364, 372 (1993). Further, Strickland requires that "[j]udicial scrutiny of counsel's performance . . . be highly deferential." Strickland, 466 U.S. at 689. There is a "strong presumption that counsel's conduct falls within a wide range of reasonable professional assistance." Id. at 686-87. Moreover, the Court need not address both the deficiency prong and the prejudice prong if the defendant fails to make a sufficient showing of either one. Id. at 697. For purposes of a motion for COA, Petitioner must show at a minimum that it is debatable among jurists of reason whether he has provided sufficient evidence of deficient performance and prejudice for the claim to move forward on review.
Petitioner argues that trial counsel was ineffective for (1) failing to conduct meaningful investigation at the preliminary hearing phase into the whereabouts of a key witness, Howard Herring, and into law enforcement personnel mishandling of the weapon, (Pet. 47, 50, 58); (2) failing to impeach law enforcement personnel regarding false and improper testimony at the preliminary hearing (Id. at 51-53); (3) failing to move for expert assistance at trial regarding fingerprint analysis of the metal pipe held by decedent (Id. at 78), and (4) failing to cross-examine law enforcement personnel regarding their failure to properly confiscate and preserve evidence, and move for a mistrial on these grounds. (Id. at 85.) Petitioner contends that these errors ensured Petitioner would be ...