Opinion
No. CV 09-1538-PHX-DGC.
February 23, 2011
ORDER
On February 10, 2011, this Court denied Jonathan Michael Ploof's petition for habeas corpus relief. Doc. 22. On February 12, Petitioner moved for a certificate of appealability. Doc. 24. For reasons that follow, the Court will deny the motion.
Rule 22(b) of the Federal Rules of Appellate Procedure, as amended by the Antiterrorism and Effective Death Penalty Act of 1996, provides that if a petitioner files a notice of appeal, the district judge who rendered the judgment in question shall either issue a certificate of appealability or state why such a certificate should not issue. A certificate 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); see Jennings v. Woodford, 290 F.3d 1006, 1010 (9th Cir. 2002). In the certificate, the district court must indicate which specific issues satisfy this showing. 28 U.S.C. § 2253(c)(3); see Jennings, 290 F.3d at 1010. "[C]ertificates of appealability are to be granted on an issue-by-issue basis[.]" Hiivala v. Wood, 195 F.3d 1098, 1103 (9th Cir. 1999). Only issues specified in the certificate of appealability may be considered on appeal. See Hiivala, 195 F.3d at 1102.
When the district court rejects a constitutional claim on the merits, "[t]he petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Slack v. McDaniel, 529 U.S. 473, 484 (2000); see Silva v. Woodford, 279 F.3d 825, 832 (9th Cir. 2002). When the district court rejects a claim on procedural grounds, a petitioner must show 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, 529 U.S. at 484; see Petrocelli v. Angelone, 248 F.3d 877, 883-84 (9th Cir. 2001). "[T]he showing a petitioner must make to be heard on appeal is less than that to obtain relief[,]" and any doubts about whether a petitioner has satisfied the "jurists of reason would find it debatable" standard are resolved in the petitioner's favor. Lambright v. Stewart, 220 F.3d 1022, 1025, 1025 n. 4 (9th Cir. 2000).
Petitioner urges that he has made a "substantial showing of the denial of a constitutional right" through the mere fact that he made objections to some of the legal and factual conclusions in the magistrate judge's Report and Recommendation ("R R") and the Court denied relief on all seven claims after reviewing five of the claims de novo. See Doc. 24 at 2. Petitioner contends that he is, therefore, entitled to a certificate as to all claims. Id. Petitioner's argument is superficial and unpersuasive. The Court's February 10 order denying relief held that Petitioner did not make specific objections on Claims 4 and 5, and the Court therefore adopted the R R's findings and recommendations as to those claims without review. Doc. 22 at 12. As to the five claims the Court reviewed de novo, the law requires de novo review on R R findings and recommendations to which a petitioner specifically objects. Id. at 2 (citing § 636(b)(1)(C), Fed.R.Civ.P. 72(b), and United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003)). Where Petitioner makes specific objections, de novo review does not necessarily imply that the objections are meritorious — and Petitioner points to nothing in this Court's order that indicates otherwise. For reasons stated in the order, the Court concludes that Petitioner's claims are not meritorious and do not satisfy the reasonable jurist standard. Petitioner has not made a substantial showing of the denial of a constitutional right, and therefore the Court will deny the motion for a certificate of appealability.
IT IS ORDERED: Petitioner's motion for a certificate of appealability (Doc. 24) is denied.
DATED this 22nd day of February, 2011.