United States District Court, S.D. California
William Q. Hayes United States District Court
matter before the Court is the Motion for Certificate of
Appealability filed by Petitioner Anthony Penton. (ECF No.
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
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
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
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).
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
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).
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