Opinion
CASE NO. 05-74880.
April 16, 2008
ORDER GRANTING PETITIONER'S MOTION TO PROCEED IN FORMA PAUPERIS ON APPEAL AND GRANTING IN PART PETITIONER'S MOTION FOR A CERTIFICATE OF APPEALABILITY
Petitioner Lionel Villareal has appealed the Court's Opinion and Order denying his application for the writ of habeas corpus. The habeas petition alleged that:
I. the trial court erred in allowing an expert in crime scene reconstruction to testify and speculate beyond the area of his expertise, denying Defendant his right to due process and a fair trial;
II. the trial court erred in excluding Defendant's statements at the scene of the occurrence immediately after the alleged shooting, where the statements were part of the res gestae and were not hearsay, denying Defendant his due process right to a fair trial;
III. Defendant was denied a fair trial by repeated instances of prosecutorial misconduct;
IV. Defendant is entitled to be re-sentenced before a different judge where his sentencing guidelines were incorrectly scored;
V. the trial court violated Defendant's Fourteenth Amendment guarantee of due process of law of confrontation guaranteed by the Sixth Amendment, when the trial court incorrectly excluded/ruled that Melissa Mata's statements were hearsay; and
VI. Defendant was deprived of his Fourth and Sixth Amendment rights when his defense and appellate counselors failed to litigate at trial and on direct appeal a meritorious Fourth Amendment violation.
Currently pending before the Court are Petitioner's Motion for a Certificate of Appealability and his Motion to Proceed In Forma Pauperis on Appeal.
Before Petitioner can appeal the Court's decision, a certificate of appealability under 28 U.S.C. § 2253(c)(1)(A) and Fed.R.App.P. 22(b)(1) must issue. 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). In Slack v. McDaniel, 529 U.S. 473 (2000), the United States Supreme Court held that where a petition is rejected 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." Id. at 484.
Reasonable jurists could debate whether the Court was correct in its decision to deny relief on claims I — III and V — VI. Therefore, Petitioner's Motion for a Certificate of Appealability [Doc. 31, Mar. 11, 2008] is GRANTED in part pursuant to Ward v. Wolfenbarger, No. 07-2424 (6th Cir. Apr. 7, 2008) (unpublished), and Federal Rule of Appellate Procedure 22(b). A certificate of appealability may issue on claims I, II, III, V, and VI.
The Court DECLINES to issue a certificate of appealability on claim IV, because questions of state sentencing law, and the proper interpretation of state sentencing guidelines are not cognizable on federal habeas corpus review. Miller v. Vasquez, 868 F.2d 1116, 1118-19 (9th Cir. 1989); Whitfield v. Martin, 157 F. Supp. 2d 758, 762 (E.D. Mich. 2001). Petitioner's Motion to Proceed In Forma Pauperis on appeal [Doc. 33, Mar. 11, 2008] is GRANTED, because the appeal is taken in good faith and is not frivolous. Fed.R.App.P. 24(a)(3).