SHEILA K. OBERTO, Magistrate Judge.
Petitioner, Jose Rodriguez, is a state prisoner proceeding pro se and in forma pauperis with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. In his petition, Petitioner presents three grounds for habeas relief: (1) insufficient evidence to support his conviction for first degree murder; (2) the trial court improperly instructed the jury on the applicable law; and (3) ineffective assistance of counsel. Petitioner also requested the Court hold an evidentiary hearing on his claims. (Doc. 23). The Court referred the matter to the Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and Local Rules 302 and 304. Having reviewed the record and applicable law, the undersigned recommends that the Court deny habeas relief and decline to hold an evidentiary hearing on Petitioner's claims.
On May 13, 2010, Petitioner and two men, Michael Torres ("Torres") and Joseph Sanchez ("Sanchez"), drove to a store in McFarland, California to buy beer for a barbecue. All three men were affiliated with the South Side Criminals gang from Delano, California. At the store, Petitioner and Sanchez remained in the car while Torres entered the store to purchase beer. Several people, including Michael Ramirez ("Ramirez"), were in the parking lot of the store when Petitioner, Torres, and Sanchez pulled into the parking lot.
After realizing he did not have the ATM card he was going to use to purchase beer, Torres exited the store after approximately a minute. Upon returning to the parking lot, Torres saw Ramirez fighting with Petitioner inside Petitioner's car. Petitioner was sitting in the driver's seat, Ramirez was in the passenger's seat, and Ramirez had his hands wrapped around Petitioner's neck. It was not immediately clear to Torres why Petitioner and Ramirez were fighting or how the fight started.
In an effort to stop the fight, Torres tried to open the driver's side door of Petitioner's car, but it was locked, so he walked around to open the passenger's side door. Ramirez exited Petitioner's car and asked Torres where he was from.
Torres got into the passenger side of Petitioner's car and Petitioner put the car in reverse to leave the store. As Petitioner was backing up, Ramirez kicked the front of Petitioner's car. Petitioner stopped, picked up a gun from under the seat, opened the driver's side door, and stepped out of the car before firing several shots over the roof of the car at Ramirez. Ramirez was wounded in the shooting and a bystander was killed by a gunshot wound to the head. After the shooting, Petitioner drove away from the scene with Torres and Sanchez in the car.
At trial, Petitioner testified that Ramirez got into the passenger side of Petitioner's car and, without saying anything, started beating Petitioner. Petitioner did not know Ramirez prior to this time. After Ramirez exited the car and as Petitioner was backing the car up, Petitioner stated that Torres did told him Ramirez had a gun and Petitioner believed he saw a weapon in Ramirez's hand. Panicking as he saw Ramirez approaching the front of his car, Petitioner got out of the car and started shooting.
Petitioner was charged with (1) first degree murder (Cal. Penal Code § 187(a)); (2) premeditated attempted murder (Cal. Penal Code §§ 664, 187(a), 189); and (3) street terrorism (Cal. Penal Code § 186.22(b)(1)). Count 1 contained an enhancement alleging that the murder was carried out to further the activities of a criminal street gang (Cal. Penal Code §190.2(a)(22)). Counts 1 and 2 contained enhancements alleging premeditation or the discharge of a firearm from a motor vehicle, which caused great bodily injury (Cal. Penal Code § 12022.53(d)), and that the crimes were committed for the benefit of a criminal street gang (Cal. Penal Code § 186.22(b)(1)).
Petitioner's jury trial began on October 1, 2012. At trial, Petitioner's counsel objected to the court instructing the jury pursuant to California Criminal Jury Instruction ("CALCRIM") 521, for drive-by murder.
(Lodged Doc. 8 at 823-24.)
During deliberations, the jury sent two notes to the court. First, the jury asked for clarification or a definition of the phrase "shots from a motor vehicle." (Id. at 826.) The court instructed the jury, "I'm simply going to restate to you what I previously stated, and that is that words and phrases not specifically defined in my instructions are to be applied using their ordinary, everyday meanings."
Second, the jury indicated that they did not find instructions for second degree murder in the jury instructions they were given, and asked whether "we consider second-degree murder as a lesser crime?" Id. at 825-26. Outside the presence of the jury, the trial court informed counsel,
Id.
After this conference with counsel, the trial court responded to the jury's question by informing the jury that
Id. at 826-27.
On October 5, 2012, the jury found Petitioner guilty of (1) first degree murder (Cal. Penal Code § 187(a)); and (2) premeditated attempted murder (Cal. Penal Code §§ 664, 187(a), 189). The jury also found to be true the enhancements to Counts 1 and 2 alleging premeditation or the discharge of a firearm from a motor vehicle, causing great bodily injury (Cal. Penal Code § 12022.53(d)). The jury did not find the enhancement to Count 1, alleging that the murder was carried out to further the activities of a criminal street gang (Cal. Penal Code §190.2(a)(22)), to be true, nor that Counts 1 and 2 were committed for the benefit of a criminal street gang (Cal. Penal Code § 186.22(b)(1)). Finally, the jury found Petitioner not guilty of street terrorism (Cal. Penal Code § 186.22(b)(1)).
On November 5, 2012, the court sentenced Petitioner to a total prison term of 82 years to life. For Count 1, Petitioner was sentenced to 25 years to life for first degree murder plus an additional 25 years to life for the gun allegation. For Count 2, premeditated, attempted murder, Petitioner was sentenced to a consecutive 7 year to life sentence plus a consecutive 25 years to life for the gun allegation.
On June 28, 2013, Petitioner filed an appeal with the California Court of Appeal, Fifth Appellate District. On November 20, 2014, the Court of Appeal denied Petitioner's appeal.
On December 21, 2015, Petitioner filed his petition for writ of habeas corpus before this Court. Respondent filed a response on March 16, 2016, and Petitioner filed a reply on May 13, 2016, after the Court granted him an extension of time.
A person in custody as a result of the judgment of a state court may secure relief through a petition for habeas corpus if the custody violates the Constitution or laws or treaties of the United States. 28 U.S.C. § 2254(a); Williams v. Taylor, 529 U.S. 362, 375 (2000). On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which applies to all petitions for writ of habeas corpus filed thereafter. Lindh v. Murphy, 521 U.S. 320, 322-23 (1997). Under the statutory terms, the petition in this case is governed by AEDPA's provisions because it was filed after April 24, 1996.
Habeas corpus is neither a substitute for a direct appeal nor a device for federal review of the merits of a guilty verdict rendered in state court. Jackson v. Virginia, 443 U.S. 307, 332 n. 5 (1979) (Stevens, J., concurring). Habeas corpus relief is intended to address only "extreme malfunctions" in state criminal justice proceedings. Id. Under AEDPA, a petitioner can obtain habeas corpus relief only if he can show that the state court's adjudication of his claim:
28 U.S.C. § 2254(d); Lockyer v. Andrade, 538 U.S. 63, 70-71 (2003); Williams, 529 U.S. at 413.
"By its terms, § 2254(d) bars relitigation of any claim `adjudicated on the merits' in state court, subject only to the exceptions set forth in §§ 2254(d)(1) and (d)(2)." Harrington v. Richter, 562 U.S. 86, 98 (2011).
As a threshold matter, a federal court must first determine what constitutes "clearly established Federal law, as determined by the Supreme Court of the United States." Lockyer, 538 U.S. at 71. In doing so, the Court must look to the holdings, as opposed to the dicta, of the Supreme Court's decisions at the time of the relevant state-court decision. Id. The court must then consider whether the state court's decision was "contrary to, or involved an unreasonable application of, clearly established Federal law." Id. at 72. The state court need not have cited clearly established Supreme Court precedent; it is sufficient that neither the reasoning nor the result of the state court contradicts it. Early v. Packer, 537 U.S. 3, 8 (2002). The federal court must apply the presumption that state courts know and follow the law. Woodford v. Visciotti, 537 U.S. 19, 24 (2002). Petitioner has the burden of establishing that the decision of the state court is contrary to, or involved an unreasonable application of, United States Supreme Court precedent. Baylor v. Estelle, 94 F.3d 1321, 1325 (9th Cir. 1996).
"A federal habeas court may not issue the writ simply because the court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly." Lockyer, 538 U.S. at 75-76. "A state court's determination that a claim lacks merit precludes federal habeas relief so long as `fairminded jurists could disagree' on the correctness of the state court's decision." Harrington, 562 U.S. at 101 (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). Thus, the AEDPA standard is difficult to satisfy since even a strong case for relief does not demonstrate that the state court's determination was unreasonable. Harrington, 562 U.S. at 102.
Petitioner raised each of his three claims on appeal before the California Supreme Court. Because the California Supreme Court summarily denied review, the Court must "look through" the summary denial to the last reasoned decision. Ylst v. Nunnemaker, 501 U.S. 797, 803-06 (1991). The last reasoned opinion for each of these issues was that of the Court of Appeal.
In his first ground for habeas relief, Petitioner alleges that the evidence adduced at trial was insufficient to convict him of first degree murder and attempted murder for firing a gun from a motor vehicle. (Doc. 1 at 6.) Specifically, Petitioner contends that the evidence shows he was not inside his car when he fired his gun; therefore, his conviction for first degree murder by firing from a vehicle is unconstitutional. Id. Respondent counters that the question of whether firing a gun while not entirely within a vehicle satisfies the state-law definition for murder is a question of state law, not for the federal court to decide. (Doc. 15 at 12.)
To determine whether the evidence supporting a conviction is so insufficient that it violates the constitutional guarantee of due process of law, a court evaluating a habeas petition must carefully review the record to determine whether a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Virginia, 443 U.S. at 319; Windham v. Merkle, 163 F.3d 1092, 1101 (9th Cir. 1998). It must consider the evidence in the light most favorable to the prosecution, assuming that the trier of fact weighed the evidence, resolved conflicting evidence, and drew reasonable inferences from the facts in the manner that most supports the verdict. Virginia, 443 U.S. at 319; Jones v. Wood, 114 F.3d 1002, 1008 (9th Cir. 1997).
The Court of Appeal held that
People v. Rodriguez, No. F066128, 2014 WL 6491980 (Cal. Ct. App. Nov. 20, 2014), at 4-5.
Petitioner argues that the evidence presented at trial was insufficient to prove that he fired his gun "from" a motor vehicle or that the murder was premeditated and deliberate. (Doc. 1 at 22.) Petitioner contends that the verdict was "prejudicial because the jury was allowed to find [P]etitioner guilty of [f]irst [d]egree murder even if [the] [j]urors disagreed on whether premeditation and deliberation or drive-by murder supported the charge." Id.
In evaluating the sufficiency of the evidence, the reviewing court must consider all evidence adduced at trial. McDaniel v. Brown, 558 U.S. 120, 131 (2010). The "critical inquiry on review" of an insufficiency of evidence claim "must be not simply to determine whether the jury was properly instructed, but to determine whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt." Virginia, 443 U.S. at 318.
Here, the prosecutor called two witnesses to testify who were at the scene of the shooting. The first witness, Rita Garcia ("Ms. Garcia"), testified that on May 13, 2010, she was with Ramirez at a store in McFarland, California. (Lodged Doc. 6 at 321-22.) Ms. Garcia testified that while sitting in the back seat of Ramirez's car in the parking lot of the store, she saw Petitioner's car pull up. Id. After one of the passengers, Torres, exited Petitioner's car, Ramirez got into the passenger's seat of Petitioner's car and began fighting with Petitioner. Id. at 324. Ms. Garcia did not know why Ramirez got into Petitioner's car nor why he was fighting with Petitioner. Id. After Ramirez exited Petitioner's car and punched Torres, Ms. Garcia saw Petitioner's car back up and Ramirez kick one of the front tires. Id. Petitioner stopped the car, and Ms. Garcia stated that Petitioner was halfway in his car and halfway outside his car when he pulled out a gun and shot Ramirez.
One of Petitioner's passengers, Torres, also testified for the prosecution. Torres stated that when he was walking back from the store to the car, he saw petitioner and Ramirez in the car fighting. Id. at 376. When Ramirez got out of the car, he asked Torres where Torres was from and then punched Torres. Id. at 376-77. After Torres got into Petitioner's car and Petitioner began to back up, Ramirez kicked the car. Id. at 378. Torres stated that Petitioner stopped the car, got out, and "started shooting." Id. at 378-79. According to Torres, Petitioner was standing outside the car with the car still running when he fired the gun. Id. at 436. Torres believed that Petitioner pulled the gun out from under the driver's side seat. Id. at 384.
Petitioner testified in his own defense at trial. He stated that after Torres left the car, Ramirez got into the front passenger's seat and began punching Petitioner. (Lodged Doc. 7 at 601.) Petitioner did not know Ramirez and had never spoken to him. Id. at 602. After Torres got back into the car, Petitioner claims Torres told him "them fools [referring to Ramirez] had a gun." Id. at 606. As Petitioner tried to back out of the parking lot, he saw Ramirez walking towards the car and believed that Ramirez had something in his hand, possibly a weapon. Id. at 621. Petitioner stated, "I seen the guy [Ramirez] coming towards us, and I just — I panicked, and I just — I got off the car, and I started shooting." Id. at 607. Before getting out of the car, Petitioner had to shift the car's gears from reverse to neutral. Id. at 625. Petitioner admitted that he grabbed the gun from under his seat and shot at Ramirez because he was scared for his life. Id. at 609.
The Court must examine the evidence in the light most favorable to the prosecution, and assume that the trier of fact weighed the evidence, resolved conflicting evidence, and drew reasonable inferences from the facts in the manner that most supports the verdict. Virginia, 443 U.S. at 319; Jones, 114 F.3d at 1008.
Petition was charged with first degree murder under two theories: (1) the murder was willful, deliberate, and premeditated; and (2) the murder was committed by shooting a firearm from a motor vehicle. As to the first theory, the jury was instructed that:
(Lodged Doc. 3 at 557) (citing CALCRIM 521).
Here, two eyewitnesses testified that after Ramirez kicked Petitioner's car, Petitioner stopped the car as he was going in reverse, picked up a gun, and shot at Ramirez. Petitioner testified that he shifted the gears of the car from reverse to neutral, reached under his seat, picked up his gun, got out of the car, and fired at Ramirez. Therefore, it is reasonable that the jury could have concluded that Petitioner acted willfully, in that he intended to kill Ramirez; deliberately, in that he weighed whether to continue backing the car up or stopping the car and shooting at Ramirez with the knowledge of the consequences of shooting at someone; and with premeditation, in that he decided to kill Ramirez before shooting him.
Petitioner argues that the jurors found him guilty even "if" they "disagreed on whether premeditation and deliberation" supported the charge. However, there is nothing in the record to suggest that the jurors did not agree that Petitioner acted with deliberation and premeditation. Indeed, the Court polled the jurors to ensure a unanimous verdict and each juror stated that the guilty verdict was their verdict. (Lodged Doc. 8 at 844-45.)
Based on the jurors' question on the charge of shooting a firearm from a motor vehicle, Petitioner also argues that the Court "failed to clear up any [i]nstructional confusion [e]xpressed by the [j]ury or help the [j]ury understand the legal principles." (Doc. 1 at 22.) The jury instruction provided to the jury regarding committing a murder by shooting a firearm from a motor vehicle, stated that the prosecutor must prove Petitioner (1) shot a firearm from a motor vehicle; (2) intentionally shot a person who was outside the vehicle; and (3) intended to kill that person. (Lodged Doc. 3 at 557) (citing CALCRIM 521).
During deliberations, the jury sent a question to the court asking for clarification or a definition of the phrase "shots from a motor vehicle." (Lodged Doc. 8 at 826.) Before speaking with the jury, the court spoke with the attorneys and stated:
Id. The court instructed the jury, "I'm simply going to restate to you what I previously stated, and that is that words and phrases not specifically defined in my instructions are to be applied using their ordinary, everyday meanings." Id.
Petitioner theorizes that the jury did not understand the phrase "shots from a motor vehicle" after the court explained that undefined words "are to be applied using their ordinary, everyday meanings." Id. However, there is no indication from the record that the jury did not understand the court's answer to their question. Nor is there any evidence that the jury was unable to weigh the evidence, resolve conflicting evidence, and draw reasonable inferences from the facts. Further, given the fact that Petitioner was charged with first degree murder under two theories, the Court cannot say that the jury focused on one theory of murder over the other theory in determining Petitioner's guilt.
As the Court noted, the "critical inquiry" on an insufficiency of evidence claim is not "simply to determine whether the jury was properly instructed, but to determine whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt." Virginia, 443 U.S. at 318. Here, viewing the evidence in the light most favorable to the prosecution, a "rational trier of fact could have found the essential elements of" committing murder by shooting from a motor vehicle beyond a reasonable doubt. Id. at 319 (citing Johnson v. Louisiana, 406 U.S. 356, 362 (1972)).
Petitioner admitted to stopping his car, getting out while it was still running, and shooting over the car at Ramirez; thus, a reasonable jury could have found that Petitioner met the elements of (1) shooting a firearm from a motor vehicle; (2) intentionally shooting Ramirez, who was standing outside the vehicle; and (3) intending to kill Ramirez. Consequently, the Court recommends denying Petitioner's claim that insufficient evidence was adduced at trial to support his conviction for murder.
In his second ground for habeas relief, Petitioner argues that the trial court failed to properly instruct the jury with regard to the difference between first degree murder and second degree murder. (Doc. 1 at 23-24.) Respondent counters that the question of whether there was an instructional error with the second degree murder jury instruction, is a matter of state, not federal law. (Doc. 15 at 14.) Therefore, this Court cannot address this claim through a habeas petition. Id.
The trial court gave the jury the CALCRIM 521 instruction for murder. The instruction describes the requirements for the two theories of murder for which Petitioner was charged: (1) willful, deliberate, and premeditated murder; and (2) murder that was committed by shooting a firearm from a motor vehicle.
This language tracks the standard jury instruction form, with the exception of the last portion of the sentence. The final sentence of the standard jury instruction reads: "If the People have not met this burden, you must find the defendant not guilty of first degree murder and the murder is second degree murder." CALCRIM 521 (emphasis added to identify omitted portion of the instruction).
During deliberation, the jury sent a note to the court stating that they did not find an instruction for second degree murder in the jury instructions they were given, and asked whether "we consider second-degree murder as a lesser crime?" The trial court responded to the jury's question as follows:
Id. at 826-27.
Generally, claims of instructional error are questions of state law and are not cognizable on federal habeas review. "It is not the province of a federal court to reexamine state court determinations of state law questions." Estelle v. McGuire, 502 U.S. 62, 71-72 (1991). "The fact that a jury instruction violates state law is not, by itself, a basis for federal habeas corpus relief." Clark v. Brown, 450 F.3d 898, 904 (9th Cir. 2006). "[A] petitioner may not transform a state-law issue into a federal one merely by asserting a violation of due process." Langford v. Day, 110 F.3d 1380, 1389 (9th Cir. 1997) (internal quotation marks omitted).
To prevail in a collateral attack on state court jury instructions, a petitioner must do more that prove that the instruction was erroneous. Henderson v. Kibbe, 431 U.S. 145, 154 (1977). The petitioner must also prove that the improper instruction "by itself so infected the entire trial that the resulting conviction violated due process." Estelle, 502 U.S. at 72. And even if there were constitutional error, habeas relief cannot be granted absent a "substantial and injurious effect" on the verdict. Brecht v. Abrahamson, 507 U.S. 619, 637 (1993).
A federal court's review of a claim of instructional error is highly deferential. Masoner v. Thurman, 996 F.2d 1003, 1006 (9th Cir. 1993). A reviewing court may not judge the instruction in isolation but must consider the context of the entire record and of the instructions as a whole. Id. The mere possibility of a different verdict is too speculative to justify a finding of constitutional error. Henderson, 431 U.S. at 157. "Where the jury verdict is complete, but based upon ambiguous instructions, the federal court, in a habeas petition, will not disturb the verdict unless `there is a reasonable likelihood that the jury has applied the challenged instruction in a way' that violates the Constitution." Solis v. Garcia, 219 F.3d 922, 927 (9th Cir. 2000) (quoting Estelle, 502 U.S. at 72).
Even when the trial court has made an error in the instruction, a habeas petitioner is only entitled to relief if the error "had a substantial and injurious effect or influence in determining the jury's verdict." Brecht, 507 U.S. at 637 (quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946)). A state prisoner is not entitled to federal habeas relief unless the instructional error resulted in "actual prejudice." Brecht, 507 U.S. at 637. A violation of due process occurs only when the instructional error results in the trial being fundamentally unfair. Estelle, 502 U.S. at 72-73; Duckett v. Godinez, 67 F.3d 734, 746 (9th Cir. 1995). If the court is convinced that the error did not influence the jury, or had little effect, the judgment should stand. O'Neal v. McAninch, 513 U.S. 432, 437 (1995).
The Court of Appeal found that the trial court properly instructed the jury on first and second degree murder. The Court of appeal held:
Rodriguez, 2014 WL 6491980, at 6-7.
The jury instruction given to the jury in this case followed the standard jury instruction and directed the jury as to the appropriate definitions of first degree murder applicable in this case. The trial court did not read the full last sentence of the standard jury instruction; however, after receiving the note from the jury, the court defined second degree murder pursuant to the California Penal Code. Specifically, the California Penal Code states:
Cal. Penal Code § 189 (emphasis added).
The trial court, therefore, correctly instructed the jury that "murder which is not of the first degree is murder of the second degree." (Lodged Doc. 3 at 827.) Because Petitioner cannot show that there was an error in the jury instruction, Petitioner cannot establish that the instruction "by itself so infected the entire trial that the resulting conviction violated" his constitutional rights. Estelle, 502 U.S. at 72. Consequently, the Court recommends dismissing Petitioner's jury instruction claim.
In his third ground for habeas relief, Petitioner argues that trial counsel provided ineffective assistance by failing to object to the court's definition of second degree murder and failing to properly clarify and define the offense of second degree murder. (Doc. 1 at 25.) Respondent counters that any objection to the definition of second degree murder given to the jury would have been fruitless, as the definition was correct, and counsel need not make fruitless arguments. (Doc. 15 at 16.)
The purpose of the Sixth Amendment right to counsel is to ensure that the defendant receives a fair trial. Strickland v. Washington, 466 U.S. 668, 686 (1984). "[T]he right to counsel is the right to effective assistance of counsel." McMann v. Richardson, 397 U.S. 759, 771 n. 14 (1970). "The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland, 466 U.S. at 686.
To prevail on a claim of ineffective assistance of counsel, a petitioner must demonstrate that his trial counsel's performance "fell below an objective standard of reasonableness" at the time of trial and "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 688, 694. The Strickland test requires Petitioner to establish two elements: (1) his attorney's representation was deficient and (2) he suffered prejudice as a result of the deficient representation. Both elements are mixed questions of law and fact. Id. at 698.
These elements need not be considered in order. Id. at 697. "The object of an ineffectiveness claim is not to grade counsel's performance." Id. If a court can resolve an ineffectiveness claim by finding a lack of prejudice, it need not consider whether counsel's performance was deficient. Id.
The Court of Appeal described Petitioner's complaint:
Rodriguez, 2014 WL 6491980, at 7.
Petitioner maintains that trial counsel was ineffective for failing to object the definition of second degree murder given to jury. However, the instruction was an accurate statement of law; therefore, an objection would have been meritless. "Failure to raise a meritless argument does not constitute ineffective assistance of counsel." Boag v. Raines, 769 F.3d 1341, 1344 (9th Cir. 1985) (citing Cooper v. Fitzharris, 551 F.2d 1162, 1166 (9th Cir. 1977)); see also Rupe v. Wood, 93 F.3d 1434, 1445 (9th Cir. 1996) ("[T]he failure to take a futile action can never be deficient performance."). Because Petitioner's claim is meritless, the Court recommends denying Petitioner's ineffective assistance of trial counsel claim.
Petitioner requests the Court hold an evidentiary hearing. In habeas proceedings, "an evidentiary hearing is not required on issues that can be resolved by reference to the state court record." Totten v. Merkle, 137 F.3d 1172, 1176 (9th Cir. 1998). "It is axiomatic that when issues can be resolved with reference to the state court record, an evidentiary hearing becomes nothing more than a futile exercise." Id. at 1176. Here, all of Petitioner's claims can be resolved by reference to the state court record. Accordingly, the Court recommends denying Petitioner's request for an evidentiary hearing.
A petitioner seeking a writ of habeas corpus has no absolute entitlement to appeal a district court's denial of his petition, but may only appeal in certain circumstances. Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003). The controlling statute in determining whether to issue a certificate of appealability is 28 U.S.C. § 2253, which provides:
If a court denies a habeas petition, the court may only issue a certificate of appealability "if jurists of reason could disagree with the district court's resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further." Miller-El, 537 U.S. at 327; Slack v. McDaniel, 529 U.S. 473, 484 (2000). Although the petitioner is not required to prove the merits of his case, he must demonstrate "something more than the absence of frivolity or the existence of mere good faith on his. . . part." Miller-El, 537 U.S. at 338.
Reasonable jurists would not find the Court's determination that Petitioner is not entitled to federal habeas corpus relief debatable, wrong, or deserving of encouragement to proceed further. Accordingly, the Court should decline to issue a certificate of appealability.
Based on the foregoing, the undersigned recommends that the Court dismiss the petition for writ of habeas corpus with prejudice and decline to issue a certificate of appealability.
These Findings and Recommendations will be submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C 636(b)(1). Within
IT IS SO ORDERED.
(Lodged Doc. 3 at 557-58.)
(Lodged Doc. 8 at 825.)
