Opinion
No. 02 C 3093.
June 30, 2004
MEMORANDUM OPINION
This matter is before the court on Petitioner Omar Zamora's ("Zamora") application for certificate of appealability. For the reasons stated below deny the application.
BACKGROUND
Following a bench trial in Illinois state court Zamora was convicted of possession of a controlled substance with intent to deliver and was sentenced to twelve years in prison. The state appellate court affirmed the conviction and the Illinois Supreme Court denied Zamora leave to appeal further. Zamora filed a post-conviction petition which was denied. The ruling was affirmed and the Illinois Supreme Court denied Zamora leave to appeal further. Zamora then filed a petition for writ of habeas corpus in this court. On May 10, 2004, we denied Zamora's petition for writ of habeas corpus. Zamora has now filed an application for certificate of appealability.
LEGAL STADARD
If a court denies a petition for writ of habeas and the petitioner wishes to appeal, challenging the decisions made by the state trial courts, the petitioner must seek a certificate of appealability from the district court. 28 U.S.C. § 2253(c); Montgomery v. Davis, 362 F.3d 956, 957 (7th Cir. 2004). A district court should only issue a certificate of appealability "if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). The petitioner must also 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 v. McDonnell, 529 U.S. 473, 484 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 (1983)).
DISCUSSION
Zamora has failed to make a substantial showing of the denial of a constitutional right. His argument concerning the admission of the letters at trial were not properly presented to the state courts during the criminal proceedings and thus his argument is procedurally defaulted. Page v. Frank, 343 F.3d 901, 905 (7th Cir. 2003); Howard v. O'Sullivan, 185 F.3d 721, 725 (7th Cir. 1999); Milone v. Camp, 22 F.3d 693, 702 (7th Cir. 1994). Zamora has not shown that his trial counsel's representation was ineffective in any way. Strickland v. Washington, 466 U.S. 668, 687-88 (1984). In regards to Zamora's argument regarding the appropriateness of the search warrant, Zamora failed to properly present the matter to the state appellate court for review. Zamora also argued that the police testifying against him committed perjury. However, there is no indication that the police committed perjury or that even if they did so that the prosecutor knew of the alleged perjury or that the perjury affected the outcome of the trial. Zamora's direct appeal was completely without merit and his appellate counsel appropriately withdrew. Anders v. California, 386 U.S. 738, 744 (1967). There is no indication that the state courts acted inappropriately in regards to Zamora's post-conviction petition. For these reasons and for all of the reasons detailed in our prior ruing in this action, we find that Zamora has not even approached his burden of substantial showing of the denial of a constitutional right. A reasonable jurist could only conclude after reviewing the record that, in regards to Zamora's federal constitutional rights, Zamora was treated justly, that his constitutional rights were not violated, and that there is no reason for these proceedings to proceed any further.
We note that Zamora also makes a few arguments in his application concerning this court's prior ruling such as that we misconstrued facts and that we erred when we determined that an evidentiary hearing was not warranted. However, those arguments to not seek to challenge the rulings of the state proceedings and are thus inappropriate for consideration in an application for a certificate of appealability. Regardless, we have reviewed our prior ruling in these regards and find them to be proper and just.
CONCLUSION
Based on the foregoing analysis, we deny the application for certificate of appealability.