EDMUND F. BRENNAN, Magistrate Judge.
Petitioner is a state prisoner proceeding without counsel with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges a judgment of conviction entered against him on February 21, 2012 in the San Joaquin County Superior Court on charges of first degree murder (Pen. Code § 187), shooting into an occupied vehicle (Pen. Code § 246), and unlawful possession of a firearm as a minor (Pen. Code § 12101(a)(1)). He seeks federal habeas relief on the following grounds: (1) his due process rights were violated when he was convicted of first degree murder without sufficient evidence of premeditation and deliberation; (2) the trial court violated his due process rights by declining his counsel's request to instruct the jury on the lesser included offense of voluntary manslaughter based on provocation; (3) the trial court violated his due process rights by instructing the jury on consciousness of guilt by way of concealing evidence (CALCRIM No. 371), over his counsel's objections; and (4) his sentence of fifty years to life constitutes cruel and unusual punishment in contravention of the Eighth Amendment because it effectively amounts to a life sentence without the possibility of parole. Upon careful consideration of the record and the applicable law, the undersigned recommends that petitioner's application for habeas corpus relief be denied.
In its unpublished memorandum and opinion affirming petitioner's judgment of conviction on appeal, the California Court of Appeal for the Third Appellate District provided the following factual summary:
People v. Duenas, No. C070823, 2014 WL 2111212, at *1-2 (Cal. Ct. App. May 21, 2014), review denied (July 30, 2014).
An application for a writ of habeas corpus by a person in custody under a judgment of a state court can be granted only for violations of the Constitution or laws of the United States. 28 U.S.C. § 2254(a). A federal writ is not available for alleged error in the interpretation or application of state law. See Wilson v. Corcoran, 562 U.S. 1,5 (2010); Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Park v. California, 202 F.3d 1146, 1149 (9th Cir. 2000).
Title 28 U.S.C. § 2254(d) sets forth the following standards for granting federal habeas corpus relief:
For purposes of applying § 2254(d)(1), "clearly established federal law" consists of holdings of the United States Supreme Court at the time of the last reasoned state court decision. Thompson v. Runnels, 705 F.3d 1089, 1096 (9th Cir. 2013) (citing Greene v. Fisher, 565 U.S. 34 (2011); Stanley v. Cullen, 633 F.3d 852, 859 (9th Cir. 2011) (citing Williams v. Taylor, 529 U.S. 362, 405-06 (2000)). Circuit court precedent "may be persuasive in determining what law is clearly established and whether a state court applied that law unreasonably." Stanley, 633 F.3d at 859 (quoting Maxwell v. Roe, 606 F.3d 561, 567 (9th Cir. 2010)). However, circuit precedent may not be "used to refine or sharpen a general principle of Supreme Court jurisprudence into a specific legal rule that th[e] [Supreme] Court has not announced." Marshall v. Rodgers, 569 U.S. 58, 64 (2013) (citing Parker v. Matthews, 567 U.S. 37, 49 (2012) (per curiam)). Nor may it be used to "determine whether a particular rule of law is so widely accepted among the Federal Circuits that it would, if presented to th[e] [Supreme] Court, be accepted as correct. Id. Further, where courts of appeals have diverged in their treatment of an issue, it cannot be said that there is "clearly established Federal law" governing that issue. Carey v. Musladin, 549 U.S. 70, 77 (2006).
A state court decision is "contrary to" clearly established federal law if it applies a rule contradicting a holding of the Supreme Court or reaches a result different from Supreme Court precedent on "materially indistinguishable" facts. Price v. Vincent, 538 U.S. 634, 640 (2003). Under the "unreasonable application" clause of § 2254(d)(1), a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from the Supreme Court's decisions, but unreasonably applies that principle to the facts of the prisoner's case.
If the state court's decision does not meet the criteria set forth in § 2254(d), a reviewing court must conduct a de novo review of a habeas petitioner's claims. Delgadillo v. Woodford, 527 F.3d 919, 925 (9th Cir. 2008); see also Frantz v. Hazey, 533 F.3d 724, 735 (9th Cir. 2008) (en banc) ("[I]t is now clear both that we may not grant habeas relief simply because of § 2254(d)(1) error and that, if there is such error, we must decide the habeas petition by considering de novo the constitutional issues raised.").
The court looks to the last reasoned state court decision as the basis for the state court judgment. Stanley, 633 F.3d at 859; Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004). If the last reasoned state court decision adopts or substantially incorporates the reasoning from a previous state court decision, this court may consider both decisions to ascertain the reasoning of the last decision. Edwards v. Lamarque, 475 F.3d 1121, 1126 (9th Cir. 2007) (en banc). "When a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary." Richter, 562 U.S. at 99. This presumption may be overcome by a showing "there is reason to think some other explanation for the state court's decision is more likely." Id. at 785 (citing Y1st v. Nunnemaker, 501 U.S. 797, 803 (1991)). Similarly, when a state court decision on a petitioner's claims rejects some claims but does not expressly address a federal claim, a federal habeas court must presume, subject to rebuttal, that the federal claim was adjudicated on the merits. Johnson v. Williams, 568 U.S. 289, 292 (2013).
Where the state court reaches a decision on the merits but provides no reasoning to support its conclusion, a federal habeas court independently reviews the record to determine whether habeas corpus relief is available under § 2254(d). Stanley, 633 F.3d at 860; Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003). "Independent review of the record is not de novo review of the constitutional issue, but rather, the only method by which we can determine whether a silent state court decision is objectively unreasonable." Himes, 336 F.3d at 853. Where no reasoned decision is available, the habeas petitioner still has the burden of "showing there was no reasonable basis for the state court to deny relief." Richter, 562 U.S. at 98.
A summary denial is presumed to be a denial on the merits of the petitioner's claims. Stancle v. Clay, 692 F.3d 948, 957 & n. 3 (9th Cir. 2012). While the federal court cannot analyze just what the state court did when it issued a summary denial, the federal court must review the state court record to determine whether there was any "reasonable basis for the state court to deny relief." Richter, 562 U.S. at 98. This court "must determine what arguments or theories . . . could have supported, the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of [the Supreme] Court." Id. at 102. The petitioner bears "the burden to demonstrate that `there was no reasonable basis for the state court to deny relief.'" Walker v. Martel, 709 F.3d 925, 939 (9th Cir. 2013) (quoting Richter, 562 U.S. at 98).
When it is clear, however, that a state court has not reached the merits of a petitioner's claim, the deferential standard set forth in 28 U.S.C. § 2254(d) does not apply and a federal habeas court must review the claim de novo. Stanley, 633 F.3d at 860; Reynoso v. Giurbino, 462 F.3d 1099, 1109 (9th Cir. 2006); Nulph v. Cook, 333 F.3d 1052, 1056 (9th Cir. 2003).
In his first ground for habeas relief, petitioner argues that his first degree murder conviction was not supported by sufficient evidence of premeditation and deliberation. ECF No. 1 at 5, 32-33.
Duenas, 2014 WL 2111212, at *3-4. Petitioner raised this claim in a petition for review filed with the California Supreme Court. Lodg. Doc. No. 13 (Petition for Review) at 8. This petition was denied.
The Due Process Clause "protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." In re Winship, 397 U.S. 358, 364 (1970). There is sufficient evidence to support a conviction if, "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979). "[T]he dispositive question under Jackson is `whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt.'" Chein v. Shumsky, 373 F.3d 978, 982 (9th Cir. 2004) (quoting Jackson, 443 U.S. at 318). Put another way, "a reviewing court may set aside the jury's verdict on the ground of insufficient evidence only if no rational trier of fact could have agreed with the jury." Cavazos v. Smith, 565 U.S. 1, 2 (2011). Sufficiency of the evidence claims in federal habeas proceedings must be measured with reference to substantive elements of the criminal offense as defined by state law. Jackson, 443 U.S. at 324 n.16.
In conducting federal habeas review of a claim of insufficient evidence, "all evidence must be considered in the light most favorable to the prosecution." Ngo v. Giurbino, 651 F.3d 1112, 1115 (9th Cir. 2011). "Jackson leaves juries broad discretion in deciding what inferences to draw from the evidence presented at trial," and it requires only that they draw "`reasonable inferences from basic facts to ultimate facts.'" Coleman v. Johnson, 566 U.S. 650, 655 (2012) (per curiam) (citation omitted). "`Circumstantial evidence and inferences drawn from it may be sufficient to sustain a conviction.'" Walters v. Maass, 45 F.3d 1355, 1358 (9th Cir. 1995) (citation omitted).
If the record supports conflicting inferences, the reviewing court "must presume — even if it does not affirmatively appear in the record — that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution." McDaniel v. Brown, 558 U.S. 120, 133, 130 S.Ct. 665, 175 L. Ed. 2d 582 (2010) (per curiam) (quoting Jackson, 443 U.S. at 326). In evaluating the evidence presented at trial, this court may not weigh conflicting evidence or consider witness credibility. Wingfield v. Massie, 122 F.3d 1329, 1332 (10th Cir. 1997). Instead, as noted above, the Court must view the evidence in the "light most favorable to the prosecution," Jackson, 443 U.S. at 319.
Juries have broad discretion in deciding what inferences to draw from the evidence presented at trial. This court may not "impinge[ ] on the jury's role as factfinder," or engage in "fine-grained factual parsing." Coleman, 566 U.S. at 655. As the Ninth Circuit has explained, "[t]he relevant inquiry is not whether the evidence excludes every hypothesis except guilt, but whether the jury could reasonably arrive at its verdict." United States v. Mares, 940 F.2d 455, 458 (9th Cir. 1991). Under Jackson, the Court need not find that the conclusion of guilt was compelled, only that it rationally could have been reached. Drayden v. White, 232 F.3d 704, 709-10 (9th Cir. 2000).
"A petitioner for a federal writ of habeas corpus faces a heavy burden when challenging the sufficiency of the evidence used to obtain a state conviction on federal due process grounds." Juan H. v. Allen, 408 F.3d 1262, 1274 (9th Cir. 2005). Because this case is governed by the Anti-Terrorism and Effective Death Penalty Act, this court owes a "double dose of deference" to the decision of the state court. Long v. Johnson, 736 F.3d 891, 896 (9th Cir. 2013) (quoting Boyer v. Belleque, 659 F.3d 957, 960 (9th Cir. 2011)). See also Coleman, 566 U.S. at 651 ("Jackson claims face a high bar in federal habeas proceedings because they are subject to two layers of judicial deference."); Kyzar v. Ryan, 780 F.3d 940, 943 (9th Cir. 2015) (same).
The California Court of Appeal found that the jury's first degree murder verdict was supported by substantial evidence. It emphasized that the jury could conclude that petitioner acted with premeditation by approaching the victim with a concealed firearm and engaging him in benign conversation designed to lower his guard. Duenas, 2014 WL 2111212, at *3. It also noted that the method of killing — a single shot to the head at close range — was sufficiently suggestive of deliberation. Id. By contrast, petitioner argues that the evidence permits only the opposite conclusion — that the shooting was a completely impulsive act undertaken in self-defense. ECF No. 1 at 32-33. His argument is primarily founded on the absence of any evidence of mutual hostility between himself and the victim which might suggest premeditation. Id. at 33. Petitioner also points out that no witness testified to foreseeing the attack and contends that this omission is clear evidence that the act was unplanned. Id.
Petitioner is not entitled to habeas relief on this claim. "The elements of first-degree murder can be established by circumstantial evidence and inferences drawn from it." United States v. Free, 841 F.2d 321, 325 (9th Cir. 1988). Premeditation may be inferred from a "petitioner's calculated behavior both before and after the killing . . . ." Jackson, 443 U.S. at 325. Additionally, a first degree murder conviction in California can be sustained solely by manner of killing evidence which is strongly suggestive of premeditation and deliberation. Drayden, 232 F.3d at 709. Accordingly, the court concludes that the Court of Appeal's rejection of petitioner's sufficiency claim was not clearly erroneous or an unreasonable application of Winship to the facts at hand. Nor can it be said that the decision was "so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Richter, 562 U.S. at 103.
The extraordinary difficulty petitioner faces in challenging the sufficiency of the evidence underpinning his conviction bears reemphasis. He has undertaken efforts to point out conflicts in the evidence where inferences could have been drawn in his favor and to present an alternate theory of the killing. The jury presumably rejected these inferences and arguments when it convicted him of first degree murder, however, and this court cannot reweigh the evidence on its own. See Cavazos, 565 U.S. at 2 ("[I]t is the responsibility of the jury — not the court — to decide what conclusions should be drawn from evidence at trial."). Instead, a jury's verdict must stand where, as here, it could have been reached rationally. Drayden, 232 F.3d at 709-710; see also Bruce v. Terhune, 376 F.3d 950, 957 (9th Cir. 2004) (per curiam) (on federal habeas review the court must presume jury resolved conflicts in favor of prosecution and defer to that resolution).
Next, petitioner contends that the trial court erred in refusing his counsel's request for an instruction on voluntary manslaughter based on sudden quarrel or heat of passion. ECF No. 1 at 34-36. The trial court reasoned that such an instruction was unwarranted because the facts of the case did not indicate the petitioner was angry or provoked by the conversation he had with the victim prior to the shooting. Lodg. Doc. No. 6 (Reporter's Transcript, Vol. IV) at 992-993. The Court of Appeal agreed with the trial court, reasoning:
Accordingly, we reject defendant's contentions regarding provocation. Duenas, 2014 WL 2111212, at *4-6. This claim was presented to the California Supreme Court and summarily rejected. Lodg. Doc. No. 13 (Petition for Review) at 12-16; Lodg. Doc. No. 14 (Order Denying Petition for Review).
First, any argument that a state court misapplied state law to prejudicial effect is not cognizable on federal habeas review. Estelle, 502 U.S. at 67-68. Turning to federal law, the United States Supreme Court has held that a trial court's failure to instruct on a lesser included offense in a capital case rises to the level of constitutional error if there was sufficient evidence to support the instruction. See Beck v. Alabama, 447 U.S. 625, 638 (1980). By contrast, the failure to instruct on lesser included offenses in a non-capital case generally does not present a federal constitutional claim. Solis v. Garcia, 219 F.3d 922, 929 (9th Cir. 2000). Jury instruction errors will only warrant federal habeas relief if they "so infect[] the entire trial that the resulting conviction violates due process." Estelle, 502 U.S. at 71. A petitioner carries an "especially heavy" burden where he challenges a trial court's failure to give an instruction because "[a]n omission, or an incomplete instruction, is less likely to be prejudicial than a misstatement of the law." Henderson v. Kibbe, 431 U.S. 145, 155 (1977). Finally, there is no constitutional error in failing to instruct on a defense theory that is not supported by "evidence sufficient for a reasonable jury to find in his favor." Mathews v. United States, 485 U.S. 58, 63 (1988); Clark v. Brown, 450 F.3d 898, 904-905 (9th Cir. 2006) ("When habeas is sought under 28 U.S.C. § 2254, [f]ailure to instruct on the defense theory of the case is reversible error if the theory is legally sound and evidence in the case makes it applicable.") (quoting Beardslee v. Woodford, 358 F.3d 560, 577 (9th Cir. 2004)) (internal quotations omitted).
The Court of Appeal rejected petitioner's claim after concluding, as the trial court did before it, that the evidence did not support a finding that petitioner was provoked into shooting the victim. Duenas, 2014 WL 2111212, at *5. Under California law, "[t]he factor which distinguishes the `heat of passion' form of voluntary manslaughter from murder is provocation." People v. Lee, 20 Cal.4th 47, 59, 82 Cal.Rptr.2d 625, 971 P.2d 1001 (1999). "The provocation which incites the defendant to homicidal conduct in the heat of passion must be caused by the victim, or be conduct reasonably believed by the defendant to have been engaged in by the victim." Id. (internal citation omitted). "[T]he conduct must be sufficiently provocative that it would cause an ordinary person of average disposition to act rashly or without due deliberation and reflection." Id. As the Court of Appeal noted, petitioner testified that his decision to shoot the victim was motivated by a fear for his safety rather than any provoked passion. Lodg. Doc. 5 (Reporter's Transcript Vol. III) at 797. The Court of Appeal also reasonably determined that the alleged provocation at issue — the victim's verbal disparagement of the petitioner and his aunt — would not have provoked a reasonable person. See People v. Najera, 138 Cal.App.4th 212, 226 (2006) ("A provocation of slight and trifling character, such as words of reproach, however grievous they may be, or gestures, or an assault, or even a blow, is not recognized as sufficient to arouse, in a reasonable man, such passion as reduces an unlawful killing with a deadly weapon to manslaughter."); People v. Gutierrez, 45 Cal.4th 789, 826 (2009) (holding that "a voluntary manslaughter instruction is not warranted where the act that allegedly provoked the killing was no more than taunting words, a technical battery, or slight touching."); People v. Manriquez, 37 Cal.4th 547, 586 (2005) (victim's reference to defendant as a "mother fucker" and taunting defendant by saying "if defendant had a weapon, he should take it out and use it . . . plainly [was] insufficient to cause an average person to become so inflamed as to lose reason and judgment."). Given that there was insufficient evidence to support a provocation instruction, this court finds that the Court of Appeal's rejection of this claim was not contrary to or an unreasonable application of federal law.
This claim also fails because, as noted above, the failure to instruct on lesser included offenses in a non-capital case does not present a federal constitutional claim. Solis, 219 F.3d at 929; James v. Reese, 546 F.2d 325, 327 (9th Cir. 1976) ("Failure of a state court to instruct on a lesser offense fails to present a federal constitutional question and will not be considered in a federal habeas corpus proceeding."). The Ninth Circuit has held that this rule may sometimes be excepted where a court declines to instruct a jury on lesser included offenses and those offenses are consistent with the defendant's theory of the case. Solis, 219 F.3d at 929. As previously stated, however, petitioner's own testimony indicated that his decision to shoot the victim was motivated by self-defense rather than provocation. Accordingly, the provocation instruction was not consistent with his theory of the case and the trial court's refusal to offer it does not give rise to a cognizable habeas claim.
Petitioner's next claim is that the trial court violated his due process rights when it instructed the jury that they could infer petitioner's awareness of his guilt if they concluded that he had tried to conceal evidence. ECF No. 1 at 10. The trial court determined, over the objections of petitioner's counsel, that there was sufficient circumstantial evidence to allow the jury to conclude that petitioner hid the gun used in the murder. Lodg. Doc. No. 6 (Reporter's Transcript, Vol. IV) at 979-983. The Court of Appeal agreed with the trial court and reasoned:
Duenas, 2014 WL 2111212, at *6-7. This claim was included in a petition for review to the California Supreme Court which was summarily denied. Lodg. Doc. No. 13 (Petition for Review) at 17-20; Lodg. Doc. No. 14 (Order Denying Petition for Review).
Jury instructions are generally matters of state law and, as such, federal courts are bound by a state appellate court's determination that a particular instruction was warranted under state law. See Bradshaw v. Richey, 546 U.S. 74, 76 (2005) ("We have repeatedly held that a state court's interpretation of state law, including one announced on direct appeal of the challenged conviction, binds a federal court sitting in habeas corpus."). In order to warrant federal habeas relief, a challenged jury instruction "cannot be merely undesirable, erroneous, or even universally condemned, but must violate some due process right guaranteed by the fourteenth amendment." Cupp v. Naughten, 414 U.S. 141, 146 (1973) (internal quotations omitted). A challenge to a trial court's jury instructions is reviewed under the standards in Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) — that is, whether the error had a "substantial and injurious effect in determining the jury's verdict." See California v. Roy, 519 U.S. 2, 5 (1996).
Petitioner is not entitled to habeas relief on this claim. As noted, this court is bound by the Court of Appeal's determination that CALCRIM No. 371 was properly warranted under California law. Bradshaw, 546 U.S. at 76. Additionally, the instruction permitted only an inference of guilt if the jury actually concluded that petitioner had tried to hide the murder weapon. See Francis v. Franklin, 471 U.S. 307, 314 (1985) ("A permissive inference suggests to the jury a possible conclusion to be drawn if the State proves predicate facts, but does not require the jury to draw that conclusion."). The trial court cautioned the jury that:
Lodg. Doc. No. 2 (Clerk's Transcript Vol. II) at 410. Moreover, the Court of Appeal's determination that the evidence supported such a finding was reasonable. Francis, 471 U.S. at 314-15 ("A permissive inference violates the Due Process Clause only if the suggested conclusion is not one that reason and common sense justify in light of the proven facts before the jury."). Finally, given the substantial evidence of petitioner's guilt presented at trial, there is no reasonable basis on which to find that this instruction, even if erroneous, had a substantial or injurious effect on the jury's verdict. See Brecht, 507 U.S. at 639 (finding trial error harmless where "the State's evidence of guilt was, if not overwhelming, certainly weighty" and "other circumstantial evidence . . . also pointed to petitioner's guilt").
Petitioner's final claim is that his sentence of fifty years to life violates the Eighth Amendment insofar as it effectively amounts to a life sentence without the possibility of parole. ECF No. 1 at 8-9, 37-39. He notes that he was seventeen at the time of the murder and argues the United States Supreme Court's decision in Miller v. Alabama, 132 S.Ct. 2455, 183 L. Ed. 2d 407 (2012) serves to invalidate his sentence. ECF No. 1 at 37-39. The Court of Appeal rejected this argument:
Duenas, 2014 WL 2111212, at *7-8. This claim was raised before and denied by the California Supreme Court. Lodg. Doc. No. 13 (Petition for Review) at 3-7; Lodg. Doc. No. 14 (Order Denying Petition for Review).
A criminal sentence that is disproportionate to the conviction offense may violate the Eighth Amendment. Solem v. Helm, 463 U.S. 277, 284 (1983). In Graham v. Florida, 560 U.S. 48, 74 (2010), the United States Supreme Court held that the Eighth Amendment prohibits a sentence of life without parole for juvenile offenders who commit non-homicide offenses. Subsequently in Miller, the Court held that the Eighth Amendment forbade sentencing schemes which mandated life in prison without the possibility of parole for juvenile offenders, including those juveniles who had committed homicide. 132 S. Ct. at 2469. Miller did not, however, impose a categorical bar on life without parole for juveniles; instead it held that the Eighth Amendment required a judge or jury to account for the juvenile's age and other mitigating factors before imposing a life sentence without parole. Id.
The Court of Appeal's rejection of petitioner's Eighth Amendment claim was not unreasonable. First, the United States Supreme Court has not held that an indeterminate life sentence for a juvenile homicide offender violates the Eighth Amendment. See Contreras v. Sherman, No. CV 15-3768-JAK (JPR), 2016 U.S. Dist. LEXIS 77323 at *45 (C.D. Cal. May 5, 2016). As such, this court cannot say that the Court of Appeal's decision is contrary to clearly established federal law. Additionally, both the Court of Appeal and the respondent point out that petitioner's life expectancy is seventy-six years and that, under the terms of his sentence, he will be eligible for parole when he is sixty-eight. Duenas, 2014 WL 2111212, at *8; ECF No. 13 at 20. Moreover, respondent argues (and petitioner offers no contrary assertion) that California's new parole scheme, articulated in California Penal Code section 3051,
Accordingly, IT IS HEREBY RECOMMENDED that petitioner's application for a writ of habeas corpus be denied.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any reply to the objections shall be served and filed within fourteen days after service of the objections. Failure to file objections within the specified time may waive the right to appeal the District Court's order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Y1st, 951 F.2d 1153 (9th Cir. 1991). In his objections petitioner may address whether a certificate of appealability should issue in the event he files an appeal of the judgment in this case. See Rule 11, Rules Governing Section 2254 Cases (the district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant).
Cal. Pen. Code § 3051(b)(3).
