Love v. Scribner

Filing 68

ORDER: IT IS HEREBY ORDERED that Petitioner's 64 Application for a Certificate of Appealability is GRANTED. Signed by Judge William Q. Hayes on 3/18/2010. (USCA Case No. 10-55387. Order electronically transmitted to US Court of Appeals.) (akr)

1 2 3 4 5 6 7 8 9 10 11 12 HAYES, Judge: 13 The matter before the Court is Petitioner's Motion for Certificate of Appealability. 14 (Doc. # 64). 15 16 BACKGROUND On March 22, 2006, Petitioner filed a Petition for Writ of Habeas Corpus pursuant to ALFREDRICK LOVE, vs. L.E. SCRIBNER, Warden, Petitioner, CASE NO. 06cv640-WQH-RBB ORDER

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

Respondent.

17 28 U.S.C. § 2254. (Doc. # 1). On September 7, 2006, the Magistrate Judge issued a report and 18 recommendation recommending that the Petition be denied. (Doc. # 11). On January 19, 19 2007, this Court adopted the report and recommendation and ordered judgment to be entered. 20 (Doc. # 15). 21 On March 19, 2008, the Court of Appeals for the Ninth Circuit reversed the judgment. 22 (Doc. # 25). The Ninth Circuit order stated: 23 24 25 We ... reverse and remand for an evidentiary hearing to determine whether the prosecution struck Ms. M. from the jury because of her race. If, on remand, the district court finds discrimination, the petition shall be granted. If, however, the district court finds no discrimination, the judgment denying the petition shall be reinstated.

26 Love v. Scribner, 278 F. App'x 714, 718 (9th Cir. 2008). 27 On July 14, 2008, this Court referred the case to the Magistrate Judge following remand 28 from the Ninth Circuit. (Doc. # 28). On March 12, 2009, the Magistrate Judge conducted an
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1 evidentiary hearing. (Doc. # 43, 44-1). 2 On November 30, 2009, the Magistrate Judge issued a report and recommendation

3 recommending that the Petition be granted. (Doc. # 55). On February 18, 2010, this Court 4 adopted the report and recommendation in its entirety, except for two amendments requested 5 by Petitioner. (Doc. # 60). The Court ordered "that the Petition for Writ of Habeas Corpus 6 (Doc. # 1) will be GRANTED, unless the State of California grants Petitioner a new trial no 7 later than 180 days from the date of this Order." (Doc. # 60 at 11). 8 9 # 61). 10 On March 16, 2010, Petitioner filed the Motion for Certificate of Appealability with this On March 15, 2010, Respondent filed a Notice of Appeal to the Ninth Circuit. (Doc.

11 Court. (Doc. # 64). 12 13 DISCUSSION A certificate of appealability may issue "only if the applicant has made a substantial

14 showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). It must appear that 15 reasonable jurists could find the district court's assessment of the petitioner's constitutional 16 claims debatable or wrong. See Slack v. McDaniel, 529 U.S. 473, 484-85 (2000). The Ninth 17 Circuit has stated: 18 19 20 21 [T]he issuance of a [certificate of appealability] is not precluded where the petitioner cannot meet the standard to obtain a writ of habeas corpus.... This general principle reflects the fact that the [certificate of appealability] requirement constitutes a gatekeeping mechanism that prevents [an appellate court] from devoting judicial resources on frivolous issues while at the same time affording habeas petitioners an opportunity to persuade [the appellate court] . . . of the potential merit of issues that may appear, at first glance, to lack merit.

22 Lambright v. Stewart, 220 F.3d 1022, 1025 (9th Cir. 2000) (citing, inter alia, Jefferson v. 23 Welborn, 222 F.3d 286, 289 (7th Cir. 2000) (a certificate of appealability should issue unless 24 the claims are "utterly without merit")). "Upon the filing of a notice of appeal and a request 25 for a certificate of appealability, the district court shall indicate which specific issue or issues 26 satisfy the standard for issuing a certificate, or state its reasons why a certificate should not be 27 granted." United States v. Asrar, 116 F.3d 1268, 1270 (9th Cir. 1997) (citing 28 U.S.C. § 28 2253(c)(3)).
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1

The Court finds that Petitioner raised colorable, nonfrivolous, constitutional arguments

2 with respect to whether the following rulings cumulatively denied Petitioner due process of 3 law in fairly presenting and arguing the merits of his Batson claim: 4 5 6 7 8 9 10 11 12 1. The failure to treat the expansive definition of "teacher" to include teacher's aides as mandatory. 2. The failure to admit the transcript of the prosecutor's pre-hearing interview under Habeas Rule 7. 3. Assigning little weight to Petitioner's argument that the prosecutor misrepresented to the trial judge the consistency of his strikes against social workers. 4. Assigning little weight to Petitioner's argument that the fact that the first strike was against the only African-American is highly pertinent evidence of pretext. CONCLUSION IT IS HEREBY ORDERED that Petitioner's Application for a Certificate of

13 Appealability is GRANTED. (Doc. # 64). 14 DATED: March 18, 2010 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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WILLIAM Q. HAYES United States District Judge