Opinion
CASE NO. 2:07-cv-511.
January 7, 2009
OPINION AND ORDER
On October 1, 2008, final judgment was entered dismissing the instant petition for a writ of habeas corpus pursuant to 28 U.S.C. 2254. This matter is before the Court on petitioner's notice of appeal and request for a certificate of appealability. For the reasons that follow, petitioner's request for a certificate of appealability is DENIED.
In this habeas corpus petition, petitioner asserts:
1. Ineffective assistance of trial counsel.
Trial attorneys Ron James and Joe Edwards were given records showing that one of the State's witnesses (Leonel Saucedo) had gunshot residue on his hands the night of the incident and this information was completely overlooked. During trial outside the presence of the jury, trial counsel claimed that the prosecution did not inform them about this information which was not true. Trial counsel also failed to have evidence D.N.A. tested. During trial State's witness Leonel Saucedo stated that the black man he gave a beer to had on a black coat and that same man with the black coat who he gave the beer to grabbed his friend and shot him in the [illegible] area. The black coat Mr. Leonel seen [sic] was Rashaad Marshals and it was not tested to see if his friend's blood was there.
2. Denied the right to a fair trial through the cumulative effect of errors.
If trial counsel would have thoroughly went thr[ouogh] the motion of the discovery they would have seen the information proving that Leonel Saucedo had gunshot residue on his hands proving that he fired a gun that night. Trial counsels were not prepared at all to impeach Mr. Leonel for having G.S.R. on his hands. Also trial counsels were not being professional by ignoring evidence covered in blood and not having it tested. If these errors were not ma[de] the outcome of the trial could have been different.
3. Insufficient evidence.
4. Improper sentence to consecutive terms.
On October 1, 2008, the final judgment was entered dismissing petitioner's claims as without merit or procedurally defaulted.
Petitioner has waived the right to appeal claim four by failing to object to the Magistrate Judge's recommendation of dismissal of this claim. See Thomas v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).
As to the remainder of petitioner's claims, when a claim has been denied on the merits, a certificate of appealability may issue only if the petitioner "has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). This standard is a codification of Barefoot v. Estelle, 463 U.S. 880 (1983). Slack v. McDaniel, 529 U.S. 473, 484 (2000). To make a substantial showing of the denial of a constitutional right, a petitioner must show
that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were "`adequate to deserve encouragement to proceed further.'" Barefoot, 463 U.S., at 893, and n. 4. . . .Id.
Where the Court dismisses a claim on procedural grounds, a certificate of appealability
should issue when the prisoner shows, at least, 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, supra, 529 at 484. Thus, there are two components to determining whether a certificate of appealability should issue when a claim is dismissed on procedural grounds: "one directed at the underlying constitutional claims and one directed at the district court's procedural holding." The court may first "resolve the issue whose answer is more apparent from the record and arguments." Id.
Upon review of the record, this Court concludes that petitioner has failed to establish either that reasonable jurists would debate whether petitioner's claims should have been resolved differently or whether the Court was correct in its procedural rulings. Therefore, petitioner's request for a certificate of appealability, Doc. No. 28, is DENIED.