Fuller v. Roe, No. 97-16254

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtAppeal from the United States District Court for the Northern District of California Vaughn R. Walker; Per Curiam; PER CURIAM
Citation182 F.3d 699,1999 WL 462632
Parties(9th Cir. 1999) JONATHAN FULLER, Petitioner-Appellant, v. ERNIE ROE, Warden; STATE OF CALIFORNIA, Respondents-Appellees
Decision Date10 May 1999
Docket NumberNo. 97-16254

Page 699

182 F.3d 699 (9th Cir. 1999)
JONATHAN FULLER, Petitioner-Appellant,
v.
ERNIE ROE, Warden; STATE OF CALIFORNIA, Respondents-Appellees.
No. 97-16254
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
Submitted May 10, 19991 San Francisco, California
Filed July 9, 1999
As Amended on Denial of Rehearing and Rehearing En Banc Sept. 22, 1999.

Page 700

Copyrighted Material Omitted

Page 701

COUNSEL: Robert J. Beles and Paul McCarthy, Oakland, California, for the petitioner-appellant.

Allan Yannow, Deputy Attorney General, San Francisco, California, for the respondents-appellees.

Appeal from the United States District Court for the Northern District of California Vaughn R. Walker, District Judge, Presiding

Before: Donald P. Lay,2 Harry Pregerson and Michael Daly Hawkins, Circuit Judges.

Per Curiam Opinion

OPINION

PER CURIAM:

Jonathan Fuller, a California state prisoner, appeals the district court's3 denial of his Petition for Writ of Habeas Corpus brought under 18 U.S.C. S 2254. The district court determined that there was no merit to the multitude of claims presented by Fuller. This court has jurisdiction pursuant to 28 U.S.C. S 2253 and reviews de novo a district court's denial of a writ of habeas corpus. See Park v. California, 164 F.3d 1226, 1229 (9th Cir. 1999). On appeal, Fuller asserts various errors based on factual, procedural, and constitutional grounds. We affirm.

I.

On December 17, 1992, Fuller was convicted in California State Court of first degree murder and of being a felon in possession of a firearm in violation of California Penal Code SS 187 and 12021(a). The state trial court denied his motion for new trial on April 30, 1993, and sentenced him to thirty one years to life imprisonment. On May 18, 1993, Fuller filed a notice of appeal and a companion habeas corpus petition. On November 30, 1994, the California Court of Appeals affirmed the appeal and denied the habeas petition. The California Supreme Court denied further review on December 28, 1994. Fuller then filed a Petition for Writ of Habeas Corpus in the United States District Court for the Northern District of California. On April 21, 1997, the district court denied the petition. Fuller filed a Notice of Appeal on May 27, 1997, and moved for a certificate of probable cause ("CPC") on June 6, 1997. On June 23, 1997, the district court issued an Order of Probable Cause limited to one issue.

Page 702

II.

AEDPA

The government raises a preliminary issue regarding the applicability of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214 (codified as amended in 28 U.S.C. SS 2244, 2253, 2254 and 2255), in requiring a certificate of appeal ability ("COA") and the limitation of this court's review to only those issues designated by the district court in the COA. The issue presents itself because Fuller filed his habeas petition on March 29, 1995, prior to the effective date of AEDPA,4 but did not file his notice of appeal until May 27, 1997, after the effective date of the AEDPA. As a result, Fuller contends that he is not required to obtain a COA and that his claims are not limited to only those presented in the COA.

"Before the passage of the AEDPA, 28 U.S.C. S 2253 required state prisoners seeking to appeal denials of habeas relief to get a `certificate of probable cause[CPC],' which could be issued if the prisoner made `a substantial showing of the denial of a federal right.' " Crowell v. Walsh, 151 F.3d 1050, 1051 (D.C. Cir. 1998) (citing Barefoot v. Estelle, 463 U.S. 880, 893 (1983)) (emphasis added). "Under the AEDPA prisoners must get a `certificate of appealability [COA],' which requires them to make `a substantial showing of the denial of a constitutional right.' " Id. (emphasis added); see 28 U.S.C. S2253(c)(2).

The government argues that petitioner is limited to the single issue certified by reason of the passage of the AEDPA, even though the Petition for a Writ of Habeas Corpus was filed prior to the effective date. The Eighth Circuit has held that under such circumstances the date of the filing of the notice of appeal should be the appropriate date for the determination of the applicability of AEDPA limitations. See Tiedeman v. Benson, 122 F.3d 518, 520-21 (8th Cir. 1997) (holding that the notice of appeal was subject to certificate of appeal ability requirements of AEDPA). Tiedeman recognized that in Lindh v. Murphy, 521 U.S. 320 (1997), the United States Supreme Court held that the amendments made by the AEDPA are, "generally speaking," only prospective. Tiedeman, 122 F.3d at 521. The Tiedeman court explained that it could not think of a reason why "a new provision exclusively directed towards appeal procedures would depend for its effective date on the filing of a case in a trial court, instead of on the filing of a notice of appeal or similar document." Id.

The Tiedeman case is contrary to the majority of the circuits which have interpreted Lindh to hold that regardless of when a notice of appeal is filed, if a habeas petition is filed in the district court prior to the AEDPA's effective date, there is no requirement for a certificate of appeal ability. See United States v. Kunzman, 125 F.3d 1363, 1364 n.2 (10th Cir. 1997) (joining the majority of the circuits in holding "that SS 2254 and 2255 petitioners who filed their petitions in district court prior to AEDPA's effective date, regardless of whether they filed their notice of appeal before or after AEDPA[effective date], do not need a certificate of appeal ability to proceed with their appeal"); see also Crowell v. Walsh, 151 F.3d 1050 (D.C. Cir. 1998); Berrios v. United States, 126 F.3d 430 (2nd Cir. 1997); United States v. Skandier, 125 F.3d 178 (3rd Cir. 1997).

We determine that the...

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89 practice notes
  • Hays v. Farwell, No. 3:04-cv-0011-RLH-VPC.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. District of Nevada
    • March 22, 2007
    ...The cumulative error doctrine, however, does not permit the Court to consider the cumulative effect of non-errors. See Fuller v. Roe, 182 F.3d 699, 704 (9th Cir.1999), overruled on other grounds, Slack v. McDaniel, 529 U.S. 473, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000)("where there is no sing......
  • Reynolds v. Cambra, No. CV977048CBMAJW.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
    • March 9, 2001
    ...Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214, which became effective on April 24, 1996. Fuller v. Roe, 182 F.3d 699, 702 (9th Cir.1999) (per curiam). The AEDPA provides A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a pe......
  • Ray v. Kernan, No. C 06-4556 SBA (pr).
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • January 22, 2009
    ...error that rises to the level of a due process violation. See Mancuso v. Olivarez, 292 F.3d 939, 957 (9th Cir.2002); Fuller v. Roe, 182 F.3d 699, 704 (9th Petitioner cannot establish that the state court acted contrary to or unreasonably applied clearly established federal law as determined......
  • Delgado v. Rice, No. SA CV 96-372 AHS (MAN).
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
    • September 20, 1999
    ...[the] Petition for a Writ of Habeas Corpus is the determinative date from which to judge the applicability of the AEDPA." Fuller v. Roe, 182 F.3d 699, 1999 WL 462632 (9th Cir.1999). This Petition, filed on April 19, 1996, is, therefore, not subject to the provisions of the AEDPA. See Jeffri......
  • Request a trial to view additional results
89 cases
  • Hays v. Farwell, No. 3:04-cv-0011-RLH-VPC.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. District of Nevada
    • March 22, 2007
    ...The cumulative error doctrine, however, does not permit the Court to consider the cumulative effect of non-errors. See Fuller v. Roe, 182 F.3d 699, 704 (9th Cir.1999), overruled on other grounds, Slack v. McDaniel, 529 U.S. 473, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000)("where there is no sing......
  • Reynolds v. Cambra, No. CV977048CBMAJW.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
    • March 9, 2001
    ...Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214, which became effective on April 24, 1996. Fuller v. Roe, 182 F.3d 699, 702 (9th Cir.1999) (per curiam). The AEDPA provides A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a pe......
  • Ray v. Kernan, No. C 06-4556 SBA (pr).
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • January 22, 2009
    ...error that rises to the level of a due process violation. See Mancuso v. Olivarez, 292 F.3d 939, 957 (9th Cir.2002); Fuller v. Roe, 182 F.3d 699, 704 (9th Petitioner cannot establish that the state court acted contrary to or unreasonably applied clearly established federal law as determined......
  • Delgado v. Rice, No. SA CV 96-372 AHS (MAN).
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
    • September 20, 1999
    ...[the] Petition for a Writ of Habeas Corpus is the determinative date from which to judge the applicability of the AEDPA." Fuller v. Roe, 182 F.3d 699, 1999 WL 462632 (9th Cir.1999). This Petition, filed on April 19, 1996, is, therefore, not subject to the provisions of the AEDPA. See Jeffri......
  • Request a trial to view additional results

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