Lomack v. Scribner

Filing 29

ORDER denying 28 Motion for Certificate of Appealability. Petitioner has not made a substantial showing of the denial of a constitutional right as required by 28 USC §2253(c)(2). The court therefore declines to issue a certificate of appealability. Signed by Judge M. James Lorenz on 2/20/2009. (cc: US Court of Appeals). (All non-registered users served via U.S. Mail Service). (akr)

1 2 3 4 5 6 7 8 9 10 11 KEVIN LOMACK, 12 13 v. 14 L.E. SCRIBNER, Warden, 15 16 17 Respondent. Petitioner, ) ) ) ) ) ) ) ) ) ) Civil No. 07cv17-L(WMc) ORDER DENYING CERTIFICATE OF APPEALABILITY UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

Petitioner Kevin Lomack, a state prisoner proceeding pro se, filed a Petition for Writ of

18 Habeas Corpus pursuant to 28 U.S.C. § 2254 ("Petition"). Petitioner claims his constitutional 19 rights were violated by a jury instruction regarding eyewitness identification, ineffective 20 assistance of counsel, trial court's failure to sua sponte counter the defense counsel's defective 21 performance, and sentencing based on fact findings made by the judge rather than the jury. The 22 case was referred to United States Magistrate Judge William McCurine, Jr. for a report and 23 recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and Civil Local Rule 72.1(d). The court 24 adopted the Magistrate Judge's Report and Recommendation to deny the Petition, and Petitioner 25 filed a notice of appeal. Pursuant to 28 U.S.C. § 2253(c), a certificate of appealability ("COA") 26 is DENIED. 27 Title 28 U.S.C. § 2253 governs the appealability of habeas corpus petitions. It provides

28 in pertinent part:
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(c)(1) Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from-(A) the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State court; . . . Petitioner filed a Notice of Appeal together with an Application for a Certificate of

5 Appealability ("Application"). "If an applicant files a notice of appeal, the district judge who 6 rendered the judgment must either issue a certificate of appealability or state why a certificate 7 should not issue." Fed. R. App. Proc. 22(b)(1). 8 "A certificate of appealability should issue only if the petitioner has made a substantial

9 showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). "The COA determination 10 under §2253(c) requires an overview of the claims in the habeas petition and a general 11 assessment of their merits." Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). A COA is 12 authorized "if the applicant has made a substantial showing of the denial of a constitutional 13 right." 28 U.S.C. § 2253(c)(2). "A petitioner satisfies this standard by demonstrating that jurists 14 of reason could disagree with the district court's resolution of his constitutional claims or that 15 jurists could conclude the issues presented are adequate to deserve encouragement to proceed 16 further." Miller-El, 537 U.S. at 327, citing Slack v. McDaniel, 529 U.S. 473, 484 (2000)). 17 Petitioner does not have to show "that he should prevail on the merits. He has already failed in 18 that endeavor." Lambright v. Stewart, 220 F.3d 1022, 1025 (9th Cir. 1983), citing Barefoot v. 19 Estelle, 463 U.S. 880, 893 n.4 (1983)). Nevertheless, issuance of the COA "must not be pro 20 forma or a matter of course," and a "prisoner seeking a COA must prove `something more than 21 the absence of frivolity' or the existence of mere `good faith' on his or her part." Miller-El, 537 22 U.S. at 337-38, quoting Barefoot, 463 U.S. at 893). 23 Petitioner seeks a certificate of appealability only with respect to two issues: (1) whether

24 the trial judge's reliance on facts not found by a jury, including his prior convictions, to impose 25 an upper term sentence was harmless error; and (2) whether the Sixth Amendment requires that 26 facts necessary to impose consecutive sentences be found by a jury. (Application at 1-2.) 27 With respect to the upper term sentence, Petitioner maintains that Almendarez-Torres v.

28 United States, 523 U.S. 224, 244, 247 (1998), upon which this court relied, is "flawed and
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1 questionable case law." (Application at 5-6.) Under the Sixth Amendment, "[o]ther than the 2 fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed 3 statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." 4 Blakely v. Washington, 542 U.S. 296, 301 (2004), quoting Apprendi v. New Jersey, 530 U.S. 5 466, 490 (2000). Almendarez-Torres established that the fact of a prior conviction need not be 6 proved to a jury beyond a reasonable doubt. 523 U.S. at 247. This exception was recognized in 7 Blakely and Cunningham v. California. Blakely, 542 U.S. at 301; Cunningham, 549 U.S. 270, 8 288 (2007). Although some Supreme Court justices indicated in dissenting opinions their 9 disagreement with the applicability of Almendarez-Torres after Blakely, it has not been 10 overruled and this court is bound to follow it. See Butler v. Curry, 528 F.3d 624, 643-44 (9th 11 Cir. 2008). 12 Petitioner also maintains that the court did not follow the prerequisites for applying the

13 Almendarez-Torres exception as stated in Butler. Butler held that any facts not apparent on the 14 face of the conviction documents fall outside the scope. Id. at 644. It articulated three 15 prerequisites to ensure that the exception encompasses only the facts directly reflected in the 16 conviction documents. Id. at 645. Petitioner does not maintain that the sentencing court relied 17 on any "secondary" facts derived or inferred from the prior conviction documents. To the 18 contrary, he acknowledges that the "trial court merely pointed out that Petitioner has prior 19 convictions." (Application at 6.) The sentencing court's reliance on the fact of Petitioner's prior 20 convictions was within the scope of Almendarez-Torres. 21 Last, Petitioner seeks a certificate on the issue of consecutive sentences, maintaining that

22 the same Sixth Amendment right to a jury trial which applies to the penalty for a singular crime 23 also applies to the determination whether multiple sentences should run consecutively or 24 concurrently. (Application at 7.) This court found that there was no clearly established Supreme 25 Court law to support the proposition that Petitioner's Sixth Amendment rights were violated by 26 the imposition of consecutive sentences. Since the entry of judgment in this case, the Supreme 27 Court has squarely addressed the issue. The imposition of consecutive sentences does not 28 implicate the Sixth Amendment right to a jury trial. Oregon v. Ice, 129 S. Ct. 711 (2009).
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Based on the foregoing, Petitioner has not made a substantial showing of the denial of a

2 constitutional right as required by 28 U.S.C. § 2253(c)(2). The court therefore declines to issue 3 a certificate of appealability. 4 5 6 DATED: February 20, 2009 7 8 9 COPY TO: M. James Lorenz United States District Court Judge IT IS SO ORDERED.

HON. WILLIAM McCURINE, Jr. 10 UNITED STATES MAGISTRATE JUDGE 11 ALL PARTIES/COUNSEL 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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