Opinion
CASE NO. 2:06-cv-1064.
January 2, 2008
OPINION AND ORDER
On November 26, 2007, final judgment was entered dismissing the instant petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter is before the Court on petitioner's December 12, 2007, notice of appeal, which this Court construes as a request for a certificate of appealability. For the reasons that follow, petitioner's request for a certificate of appealability is GRANTED in part and DENIED in part.
In his habeas corpus petition, petitioner asserted the following claims:
1. The petitioner was denied the effective assistance of counsel.
2. Prosecutorial misconduct, due to improper comments by the prosecutor in closing argument.
3. The trial court erred when it dismissed petitioner's motion for post conviction relief without an evidentiary hearing.
4. The court of appeals violated petitioner's due process right to full and fair appellate review when it dismissed petitioner's post conviction petition as untimely.
5. The court of appeals erred and violated petitioner's due process rights when it dismissed petitioner's case on procedural grounds after he showed a colorable claim of actual innocence.
On November 26, 2007, the Court dismissed the petition as barred under the one-year statute of limitations. Alternatively, claims one through five were dismissed on the merits or as procedurally defaulted.
In his objections to the Magistrate Judge's Report and Recommendation, petitioner asserted that he intended to raise in claims three, four, and five issues of ineffective assistance of trial counsel based upon his attorney's failure to call defense witnesses. Objections, at 16. The Court overruled petitioner's objections, concluding that, even liberally construing claims three through five as raising claims of ineffective assistance of counsel, these claims were procedurally defaulted. See Opinion and Order, November 26, 2007, Doc. No. 17.
Where the Court dismisses a claim on procedural grounds, a certificate of appealability should issue when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling. Slack v. McDaniel, 529 U.S. 473, 484 (2000). Thus, there are two components to determining whether a certificate of appealability should issue when a claim is dismissed on procedural grounds: "one directed at the underlying constitutional claims and one directed at the district court's procedural holding." Id. at 485. The court may first "resolve the issue whose answer is more apparent from the record and arguments." Id.
Although petitioner filed his habeas corpus petition long after the statute of limitations had expired, the Court is persuaded that petitioner has established that reasonable jurists would find it debatable whether his claim of actual innocence justifies equitable tolling of the statute of limitations or consideration of the merits of his underlying procedurally defaulted claims. Petitioner's request for a certificate of appealability is therefore GRANTED in this regard.
As to the Court's alternative dismissal of claims one and two on the merits, when a claim has been denied on the merits, a certificate of appealability may issue only if the petitioner "has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). This standard is a codification of Barefoot v. Estelle, 463 U.S. 880 (1983). Slack v. McDaniel, supra. To make a substantial showing of the denial of a constitutional right, a petitioner must show
that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were "`adequate to deserve encouragement to proceed further.'" Barefoot, 463 U.S., at 893, and n. 4. . . .Id.
Petitioner has failed to establish that reasonable jurists could debate whether claims should have been resolved in a different manner. Id. Petitioners' request for a certificate of appealability therefore is DENIED as it pertains to claims one and two.
The following issue is therefore certified for appeal:
Did petitioner establish a gateway actual innocence claim so as to justify equitable tolling of the statute of limitations or consideration of any of his underlying procedurally defaulted claims?