Harmon v. Knowles

Filing 17

ORDER signed by Senior Judge Fred Van Sickle on 7/19/10 ORDERING: imprisonment: 188 months concurrent; S/A: 200 due immediately; fine waived; TSR: 60 months each count concurrently; recommendation of a CA facility and that dft participate in a 500 hour BOP Substance Abuse Treatment Program. (Carlos, K) Modified on 7/19/2010 (Carlos, K).

(HC) Harmon v. Knowles

Doc. 17

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

RICHARD HARMON, JR., No. CV-06-2572-FVS Petitioner, v. MIKE KNOWLES, Respondent. ORDER DENYING CERTIFICATE OF APPEALABILITY

THIS MATTER comes before the Court based upon petitioner's motion for a Certificate of Appealability. his motion is denied. BACKGROUND Richard Harmon, Jr., was convicted of second degree murder, For the reasons set forth below,

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robbery, and arson in San Joaquin County Superior Court in the State
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of California.

He appealed the judgment of conviction.

The state

Court of Appeal affirmed his conviction and the state Supreme Court denied review. Mr. Harmon filed a petition for a writ of habeas He raised two issues he had not For one thing, he For

corpus in state Superior Court.

raised during the course of his direct appeal.

argued the trial judge improperly refused to excuse a juror.
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another thing, he argued the judge improperly admitted statements he

ORDER - 1

Dockets.Justia.com

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made to a law enforcement officer in response to custodial interrogation. Since Mr. Harmon had raised these issues for the first

time in a state habeas petition, neither the Superior Court, nor the Court of Appeal, nor the Supreme Court would consider them. As a

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result, Mr. Harmon turned to federal court; filing a petition for a
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writ of habeas corpus pursuant to 28 U.S.C. § 2254.

He asserted

issues the California courts had refused to consider as a result of his failure to comply with state procedural rules. This Court denied

habeas relief on the ground he had defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule. Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 115 Mr. Harmon now seeks a certificate of 28 U.S.C. § 2253(c).

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L.Ed.2d 640 (1991).

appealability ("COA"). STANDARD

Mr. Harmon must demonstrate "`reasonable jurists would find [this Court's] assessment of the constitutional claims debatable or wrong.'" Miller-El v. Cockrell, 537 U.S. 322, 338, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (quoting Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct.

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1595, 146 L.Ed.2d 542 (2000)).

This is a lenient standard.

Hayward

v. Marshall, 603 F.3d 546, 553 (9th Cir.2010)(en banc).

In order to

satisfy it, Mr. Harmon must show "something more than the absence of frivolity, but something less than a merits determination[.]" (internal punctuation and citations omitted). ORDER - 2 Id.

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RULING Mr. Harmon does not appear to deny he raised the disputed issues for the first time in his state habeas petition and, by doing so, violated a state procedural rule. These combined circumstances create "A federal claim

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a substantial obstacle to federal habeas relief.
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that is defaulted in state court pursuant to an adequate and independent procedural bar may not be considered in federal court unless the petitioner demonstrates cause and prejudice for the default, or shows that a fundamental miscarriage of justice would result if the federal court refused to consider the claim." Cassett

v. Stewart, 406 F.3d 614, 621 n.5 (9th Cir.2005) (citing Coleman, 501
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U.S. at 750, 111 S.Ct. 2546). establish cause and prejudice.

Mr. Harmon has not attempted to Thus, he is entitled to a COA only if

a reasonable jurist could find this Court's failure to consider his federal habeas claims would result in a fundamental miscarriage of justice. In Cook v. Schriro, 538 F.3d 1000, 1028 (9th Cir.2008), the

Ninth Circuit explained: To qualify for the "fundamental miscarriage of justice" exception to the procedural default rule . . ., [the petitioner] must show that a constitutional violation has "probably resulted" in the conviction when he was "actually innocent" of the offense. Murray [v. Carrier, 477 U.S. 478, 496, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986).] "To be credible, such a claim requires petitioner to support his allegations of constitutional error with new reliable evidence -- whether it be exculpatory scientific evidence, ORDER - 3

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trustworthy eye-witness accounts, or critical physical evidence -- that was not presented at trial." Schlup [v. Delo, 513 U.S. 298, 324, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995).] Mr. Harmon has presented no evidence of actual innocence. That being

the case, a reasonable jurist would be unable to find he has satisfied
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the "fundamental miscarriage of justice" exception to the procedural
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default rule.

Accordingly, he is not entitled to a COA.

IT IS HEREBY ORDERED: Petitioner Richard Harmon's motion for a certificate of appealability (Ct. Rec. 16) is denied. motion for reconsideration. IT IS SO ORDERED. The District Court Executive is hereby The Court will not consider a

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directed to enter this order and furnish copies to the petitioner and
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to counsel for the respondent. DATED this 19th day of July, 2010.

s/ Fred Van Sickle Fred Van Sickle Senior United States District Judge

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