Opinion
CASE NO. 07cv1875 WQH (BLM).
May 28, 2009
ORDER
The matter pending before the Court is Petitioner's Request for a Certificate of Appealability. (Doc. # 28).
On November 17, 2008, the United States Magistrate Judge issued a Report and Recommendation recommending that the petition for writ of habeas corpus filed by Petitioner Vincent Anguiano, Jr. be denied. The Magistrate Judge concluded that the determination of the state court that Petitioner was not entitled to prevail on any claim of ineffective assistance of counsel was not "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States . . .". 28 U.S.C. § 2254(d). The Magistrate Judge further concluded that Petitioner's contention that there was insufficient evidence to support the finding of the jury that Petitioner intentionally and intentionally discharged a firearm in the commission of a felony was without merit.
On February 26, 2009, this Court adopted all portions of the Report and Recommendation and denied the Writ of Habeas Corpus. (Doc. # 24).
On March 27, 2009, Petitioner filed a Notice of Appeal (Doc. #26); a Motion for leave to proceed on appeal in forma pauperis (Doc. #27); and a Request for Issuance of a Certificate of Appealability (Doc. #28) before this Court.
Petitioner is not required to obtain leave to proceed in forma pauperis to proceed with his appeal.
RULING OF THE COURT
"The requirement that a petitioner seek a certificate of appealability is a gate-keeping mechanism that protects the Court of Appeals from having to devote resources to frivolous issues, while at the same time affording petitioners an opportunity to persuade the Court that, through full briefing and argument, the potential merit of claims may appear." Lambright v. Stewart, 220 F.3d 1022, 1025 (9th Cir. 2000). A certificate of appealability may issue "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). To this end, it must appear that reasonable jurists could find the district court's assessment of the petitioner's constitutional claims "debatable or wrong." Slack v. McDaniel, 529 U.S. 473, 484-85 (2000). "Upon the filing of a notice of appeal and a request for a certificate of appealability, the district court shall indicate which specific issue or issues satisfy the standard for issuing a certificate, or state its reasons why a certificate should not be granted." United States v. Asrar, 116 F.3d 1268, 1270 (9th Cir. 1997) (citing 28 U.S.C. § 2253(c)(3)).
Petitioner alleges that the court should grant his motion for a certificate of appealability on his claim that "trial counsel rendered ineffective assistance by failing to conduct an investigation, not properly preparing for trial, and not subjecting the prosecution's case to a reliable adversarial testing rendering the trial fundamentally unfair." (Doc. # 28). After reviewing the Petition, the Magistrate Judge's Report and Recommendation, Petitioner's objection to the Magistrate Judge's Report and Recommendation, this Court's Order adopting the Report and Recommendation and denying the Petition, and the Notice of Appeal, the Court concludes that Petitioner has not made a substantial showing of the denial of a constitutional right. The Court concludes that reasonable jurists could not find that the Petitioner was entitled to prevail on any claim that his trial counsel was ineffective for (1) erroneously advising Petitioner not to testify without discussing the case or consulting with him, (2) failing to properly challenge the prosecution's case, or (3) failing to conduct an investigation.
IT IS HEREBY ORDERED that Petitioner's motion for a certificate of appealability (Docs. # 28) is DENIED in its entirety and that the Motion for leave to proceed on appeal in forma pauperis (Doc. #27) is denied as moot.