Ortiz v. Yates

Filing 39

ORDER signed by Judge John A. Mendez on 5/9/11 ORDERING petitioner's motion for a certificate of appealability 35 DENIED. (Carlos, K)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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EDDIE ORTIZ, JR.,

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Petitioner,
vs.
JAMES A. YATES,
Respondent.

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2: 08 - cv - 2165 JAM TJB

ORDER
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Petitioner, a state prisoner proceeding pro se, has filed a motion for a certificate of

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appealability along with his notice of appeal. On November 5, 2010, the United States

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Magistrate Judge assigned to this matter filed findings and recommendations which was served

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on Petitioner, and which advised Petitioner that in any objections he elected to file, he may

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address whether a certificate of appealability should issue in the event he elected to file an appeal

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from the judgment in this case. On November 22, 2010, Petitioner filed objections to the

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findings and recommendations.

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On January 14, 2011, the undersigned issued an order adopting the findings and
recommendations in full and declined to issue a certificate of appealability.
A certificate of appealability may issue under 28 U.S.C. § 2253 “only if the applicant had
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made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). The

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court must either issue a certificate of appealability indicating which issues satisfy the required

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showing, or state the reasons why such a certificate should not issue. See Fed. R. App. P. 22(b).

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A certificate of appealability should be granted for any issue that petitioner can demonstrate is

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“‘debatable among jurists of reason,’” could be resolved differently by a different court, or is

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“‘adequate to deserve encouragement to proceed further.’” Jennings v. Woodford, 290 F.3d

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1006, 1010 (9th Cir. 2002) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 (1983)).

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Petitioner argues that the following issues should be granted a certificate of appealabilty:

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1.

Whether the district court erred in failing to grant an evidentiary hearing on

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Petitioner’s claim of right to counsel of choice and conflict with counsel

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(structural error).

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2.

Whether the district court erred in failing to grant an evidentiary hearing on

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Petitioner’s claim of ineffective assistance of counsel as regards to counsel’s

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failure to investigate/interview alibi witnesses, the failure to present witnesses for

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his defense, a competent pre-trial investigation.

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3.

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Petitioner to waive jury trial rights.
4.

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Whether, with regard to Petitioner’s claim that trial counsel wrongly misadvised

Whether the District Court erred in failing to grant an evidentiary hearing on
Petitioner’s claim of actual innocence.

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Whether, with regard to Petitioner’s claim that the court wrongly convicted

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Petitioner on the insufficiency of the evidence regarding the great bodily injury

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and attempted murder findings.

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(Dkt. No. 35 at p. 2.)
Petitioner fails to demonstrate that any of these arguments are “‘debatable among jurists

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of reason,’” could be resolved differently by a different court, or are “‘adequate to deserve

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encouragement to proceed further.’” Jennings, 290 F.3d at 1010. First, a court presented with a
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request for an evidentiary hearing must first determine whether a factual basis exists in the record

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to support petitioner’s claims, and if not, whether an evidentiary hearing “might be appropriate.”

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Baja v. Ducharme, 187 F.3d 1075, 1078 (9th Cir. 1999); see also Earp v. Ornoski, 431 F.3d

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1158, 1166 (9th Cir. 2005). A petitioner requesting an evidentiary hearing must also demonstrate

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that he has presented a “colorable claim for relief.” Earp, 431 F.3d at 1167 (citations omitted).

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To show that a claim is “colorable,” a petitioner is “required to allege specific facts which, if

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true, would entitle him to relief.” Ortiz v. Stewart, 149 F.3d 923, 934 (9th Cir. 1998) (internal

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quotation marks and citation omitted). In this case, an evidentiary hearing was not warranted.

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Petitioner failed to demonstrate that he has a colorable claim for federal habeas relief. Thus, a

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certificate of appealability will not issue on Petitioner’s arguments that an evidentiary hearing

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should have been held. Additionally, as to Petitioner’s substantive arguments, he fails to make a

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substantial showing of the denial of a constitutional right for the reasons discussed in the adopted

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findings and recommendations.

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Accordingly, IT IS HEREBY ORDERED that Petitioner’s March 15, 2011 motion for a

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certificate of appealability is DENIED.

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DATED:

May 9, 2011

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/s/ John A. Mendez
UNITED STATES DISTRICT JUDGE

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