Quiroz v. McDonald

Filing 19

ORDER GRANTING CERTIFICATE OF APPEALABILITY. Signed by Judge Phyllis J. Hamilton on 11/18/11. (Attachments: # 1 Certificate/Proof of Service)(nah, COURT STAFF) (Filed on 11/18/2011)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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OAKLAND DIVISION

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DIEGO QUIROZ,
Petitioner,

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For the Northern District of California

United States District Court

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No. C 09-4940 PJH (PR)

vs.

ORDER GRANTING
CERTIFICATE OF
APPEALABILITY

MIKE McDONALD, Warden,
Respondent.
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This is a habeas case filed pro se by a state prisoner. The court issued an order to

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show cause as to two of petitioner’s claims. Respondent moved to dismiss the petition on

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grounds that the claims were barred by procedural default. The court agreed and

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dismissed the petition.

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Petitioner has filed a notice of appeal. Although he does not ask for a certificate of

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appealability (“COA”), the notice of appeal will be deemed to be such a request. See

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United States v. Asrar, 116 F.3d 1268, 1270 (9th Cir. 1997) (if no express request is made

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for a COA, the notice of appeal shall be deemed to constitute a request for a certificate).

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The court notes that the appeal may be untimely, but as that is a matter for the court of

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appeals, it will not be considered further here.

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A petitioner may not appeal a final order in a federal habeas corpus proceeding

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without first obtaining a certificate of appealability. See 28 U.S.C. § 2253(c); Fed. R. App.

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P. 22(b). Even when a petition is dismissed on procedural grounds, as here, section

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2253(c)(1) applies. Slack v. McDaniel, 529 U.S. 473, 484 (2000). “Determining whether a

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COA should issue where the petition was dismissed on procedural grounds has two

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components, one directed at the underlying constitutional claims and one directed at the

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district court’s procedural holding.” Id. at 484-85. “When the district court denies a habeas

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petition on procedural grounds without reaching the prisoner’s underlying constitutional

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claim, a COA should issue when the prisoner shows, at least, that jurists of reason would

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find it debatable whether the petition states a valid claim of the denial of a constitutional

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right and that jurists of reason would find it debatable whether the district court was correct

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in its procedural ruling.” Id. at 484. As each of these components is a “threshold inquiry,”

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the federal court “may find that it can dispose of the application in a fair and prompt manner

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if it proceeds first to resolve the issue whose answer is more apparent from the record and

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arguments.” Id. at 485. Supreme Court jurisprudence “allows and encourages” federal

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For the Northern District of California

United States District Court

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courts to first resolve the procedural issue, as was done here. See id.
Petitioner pleaded guilty to burglary of an occupied building and voluntary

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manslaughter, both crimes occurring as part of a home invasion robbery. At sentencing the

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court imposed the agreed sentence, the upper term for manslaughter, eleven years, and a

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consecutive term of one year and four months for the burglary charge.

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Petitioner raised two issues in his federal petition, that his Sixth Amendment right to

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have a jury decide the facts upon which imposition of sentence would be based, applying

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the “beyond a reasonable doubt” standard, was violated; and that his sentence was cruel

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and unusual. The last state court to provide a reasoned opinion, the California Court of

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Appeal, rejected the first issue because petitioner had failed to obtain a Certificate of

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Probable Cause to Appeal (“CPC”), as required by California law for appeals from guilty

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pleas, see Cal. Penal Code § 1237.5, and the second both because he had failed to obtain

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a CPC and because he had not raised the claim in the sentencing court.

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In opposition to the motion to dismiss petitioner contended that the California court

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had erred in holding that a CPC was necessary, so the claims were not procedurally

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defaulted. This court rejected that argument, saying: “[B]ecause the California courts are

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the final expositors of California law, this court must accept the state appellate court's

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conclusion as to its state procedural bar. See Poland v. Stewart, 169 F.3d 573, 584 (9th

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Cir. 1999) (federal courts lack jurisdiction to review state court applications of procedural
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rules; refusing to review state court's finding of procedural default).” The Ninth Circuit has,

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however, recently rejected a procedural default claim on what appears to be the ground

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that a state court erred in its application of its procedural rules. See Greenway v. Schriro,

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653 F.3d 790, 798-800 (9th Cir. 2011). In light of this, a COA will be granted as to the first

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issue. It will be denied as to the second issue because as to that claim there was a second

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basis for the procedural default holding, the lack of a contemporaneous objection, and that

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ground is well-recognized in the Ninth Circuit as a procedural bar. See Inthavong v.

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Lamarque, 420 F.3d 1055, 1058 (9th Cir. 2005).

GRANTED as to petitioner’s claim that the sentencing facts should have been determined

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For the Northern District of California

The request for certificate of appealability implied from the notice of appeal is

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United States District Court

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by a jury. It is DENIED as to his second claim, that the sentence was cruel and unusual.

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The clerk shall transmit the file, including a copy of this order, to the court of

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appeals. See Fed. R. App. P. 22(b).

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IT IS SO ORDERED.

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Dated: November 18, 2011.
PHYLLIS J. HAMILTON
United States District Judge

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P:\PRO-SE\PJH\HC.09\QUIROZ4940.COA.wpd

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