Opinion
CASE NO. 2:09-CV-681.
January 26, 2011
OPINION AND ORDER
On November 29, 2010, the Magistrate Judge issued a Report and Recommendation recommending that the instant petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 be dismissed. Petitioner has filed objections to the Magistrate Judge's Report and Recommendation and a request for a certificate of appealability (Doc. 19.) For the reasons that follow, Petitioner's objections are OVERRULED. The Report and Recommendation is ADOPTED and AFFIRMED. This action is hereby DISMISSED. Petitioner's request for a certificate of appealability is GRANTED, in part, and DENIED, in part.
In this habeas corpus petition, Petitioner asserts that his re-trial after declaration of a mistrial violated the Double Jeopardy Clause (claim one), and that he was convicted in violation of the Confrontation Clause (claim two.) On November 29, 2010, the Magistrate Judge recommended dismissal of these claims on the merits.
Petitioner objects to the Magistrate Judge's recommendations. He again argues that his re-prosecution violated the Double Jeopardy Clause, since he withdrew his request for a mistrial before the jury had been released. Additionally, he again asserts that admission of out-of-court statements of Allen Wright and Keon Lewis violated the Confrontation Clause since neither of the foregoing witnesses were unavailable for trial.
Pursuant to 28 U.S.C. § 636(b), this Court has conducted a de novo review. For the reasons already detailed in the Magistrate Judge's Report and Recommendation, this Court likewise concludes that petitioner's claims fail to warrant federal habeas corpus relief. Therefore, Petitioner's objections are OVERRULED.
Petitioner also seeks a certificate of appealability on his 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). See Slack v. McDaniel, 529 U.S. 473, 484 (2000) (recognizing codification of Barefoot in 28 U.S.C. § 2253(c)(2)). 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.'" Slack, 529 U.S. at 484 (quoting Barefoot, 463 U.S., at 893, n. 4).
This Court is persuaded that reasonable jurists would debate whether Petitioner's re-prosecution after declaration of a mistrial violated the Double Jeopardy Clause; however, the Court is not persuaded that reasonable jurists would debate whether the Court properly dismissed claim two on the merits. Therefore, Petitioner's request for a certificate of appealability is GRANTED, in part and DENIED, in part. The following issue is certified for appeal:
Did Petitioner's re-prosecution after the declaration of a mistrial violate the Double Jeopardy Clause?
Petitioner's objections are OVERRULED. The Report and Recommendation is ADOPTED and AFFIRMED. This action is hereby DISMISSED.
IT IS SO ORDERED.
DATED: January 26, 2011