Penton v. Malfi

          ORDER

          Hon. William Q. Hayes United States District Court

         The matter before the Court is the Motion for Certificate of Appealability filed by Petitioner Anthony Penton. (ECF No. 79).

         I. BACKGROUND

         On January 31, 2006, Petitioner filed a Petition for Writ of Habeas Corpus (“Petition”) pursuant to 28 U.S.C. § 2254. (ECF No. 1). On October 2, 2006, Petitioner filed an Amended Petition against Respondent A. Malfi. (ECF No. 21). On August 31, 2007, the Magistrate Judge issued a Report and Recommendation recommending that the Court deny Petitioner's Amended Petition. (ECF No. 36). The Magistrate Judge recommended that the Court deny the claims that a new trial should have been granted under the Due Process Clause and the right to confrontation. The Magistrate Judge recommended that the Court deny Petitioner's claims that California's Three Strikes law is an ex post facto law and is void for vagueness. The Magistrate Judge recommended that the Court deny Petitioner's claims of insufficiency of the evidence, ineffective assistance of trial counsel, and ineffective assistance of appellate counsel. The Magistrate Judge further recommended that the Court deny Petitioner's claim that the trial judge imposed “upper terms for his sentence based upon facts that were neither found by the jury nor admitted by Petitioner.” (Id. at 25). No objections to the Report and Recommendation were filed. On December 20, 2007, the Court adopted the Report and Recommendation in its entirety and entered judgment in favor of Respondent and against Petitioner.

         On May 18, 2018, Petitioner filed a Motion for Relief from Judgment pursuant to Rule 60(b)(6) of the Federal Rules of Civil Procedure. (ECF No. 53). On August 28, 2018, the Court granted Petitioner's Motion for Relief from Judgment. (ECF No. 61). The Court vacated the Judgment and the portions of the December 20, 2007, Order adopting the Report and Recommendation and denying the Amended Petition. The Court granted leave to file objections to the Report and Recommendation.

         On November 26, 2018, Petitioner filed Objections to the Report and Recommendation. (ECF No. 66). On April 19, 2019, Respondent filed a Response to Petitioner's Objections. (ECF No. 70). On June 17, 2019, Petitioner filed a Reply. (ECF No. 76). On September 12, 2019, the Court issued an Order adopting all portions of the Report and Recommendation except the section entitled “DEPRIVATION OF JURY TRIAL IN SENTENCING, ” page 25, line 1, through page 31, line 20, and denied Petitioner's Amended Petition. (ECF No. 77). The Court held that:

the determination of the trial judge that ‘Defendant's prior convictions are numerous and of increasing seriousness' and the decision to impose an upper term sentence in this case is consistent with the holding in [People v. Black, 41 Cal.4th 799 (2007)] and was not an ‘unreasonable application' of ‘clearly established' federal law. Petitioner is not entitled to relief under [28 U.S.C.] § 2254(d)(1).

(ECF No. 77 at 7).

         On October 14, 2019, Petitioner filed a Motion for Certificate of Appealability (ECF No. 79) and a Notice of Appeal (ECF No. 80). On November 15, 2019, the Court of Appeals issued an Order stating:

The district court has not issued or declined to issue a certificate of appealability in this appeal, which appears to arise under 28 U.S.C. § 2254. This case is remanded to the district court for the limited purpose of granting or denying a certificate of appealability at the court's earliest convenience. See 28 U.S.C. § 2253(c); Fed. R. App. P. 22(b); United States v. Asrar, 116 F.3d 1268, 1270 (9th Cir. 1997).

If the district court issues a certificate of appealability, the court should specify which issue or issues meet the required showing. See 28 U.S.C. § 2253(c)(3); Asrar, 116 F.3d at 1270. Under Asrar, if the district court declines to issue a certificate, the court should state its reasons why a certificate of appealability should not be granted, and the Clerk of the district court shall forward to this court the record with the order denying the certificate. See Asrar, 116 F.3d at 1270.

(ECF No. 82 at 1-2).

         II. DISCUSSION

         Petitioner contends that the Court should certify the following issues for appeal: 1) whether Petitioner's sentence was unconstitutionally increased under California's Determinate Sentencing Law; 2) whether Petitioner's constitutional rights to due process and a fair trial were violated at trial by the prosecutor's suppression of favorable evidence; 3) whether the trial court unconstitutionally excluded evidence favorable to Petitioner; 4) whether the trial court violated Petitioner's constitutional right to confrontation; 5) whether Petitioner should have been allowed to challenge his prior conviction at sentencing; 6) whether petitioner's appellate counsel was ineffective; and 7) whether the alleged constitutional ...