Lambright v. Stewart

• Citation: 2000 WL 1118937,220 F.3d 1022
• Decision Date: 04 August 2000
• Docket Number: 96-99026,96-99025,Nos. 96-99020,s. 96-99020
• Parties: (9th Cir. 2000) JOE LEONARD LAMBRIGHT, Petitioner-Appellant, v. TERRY STEWART, Director, Arizona Department of Corrections, Respondent-Appellee. ROBERT DOUGLAS SMITH, Petitioner-Appellant, v. TERRY STEWART, Director, Arizona Department of Corrections, Respondent-Appellee. Office of the Circuit Executive Filed
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 1022

220 F.3d 1022 (9th Cir. 2000)

JOE LEONARD LAMBRIGHT, Petitioner-Appellant, v. TERRY STEWART, Director, Arizona Department of Corrections, Respondent-Appellee.

ROBERT DOUGLAS SMITH, Petitioner-Appellant, v. TERRY STEWART, Director, Arizona Department of Corrections, Respondent-Appellee.

Nos. 96-99020, 96-99025, 96-99026

Office of the Circuit Executive

U.S. Court of Appeals for the Ninth Circuit

Filed August 4, 2000

John F. Palumbo, Law Offices of Pima County Public Defender, Tucson, Arizona; S. Jonathan Young, Tucson, Arizona, for petitioner-appellant Robert Douglas Smith.

David P. Tiers, Tucson, Arizona, for petitioner-appellant Joe Leonard Lambright.

Scott Bales, Solicitor General, Phoenix, Arizona, for the respondent-appellee.

Appeal from the United States District Court for the District of Arizona, Richard M. Bilby, Chief Judge, Presiding; D.C. No. CV-87-00235-TUC-RMB, CV-87-00234-TUC-RMB

Before: Warren J. Ferguson, Stephen Reinhardt, David R. Thompson, Circuit Judges.

Opinion by Judge FERGUSON; Partial Concurrence by Judge Thompson.

FERGUSON, Circuit Judge:

Joe Leonard Lambright ("Lambright") and Robert Douglas Smith ("Smith") appeal the district court's denial of their habeas corpus petitions seeking relief from their state convictions and death sentences.¹ The petitioners both filed notices of appeal and sought a certificate of appealability from the district court after the effective date of the Antiterrorism and Effective Death Penalty Act ("AEDPA"). The district court denied them a certificate of probable cause ("CPC") and, in the alternative, a certificate of appealability ("COA"). We subsequently granted a CPC, concluding that their appeal raised at least one issue as to which they had made "a substantial showing of the denial of a federal right." Barefoot v. Estelle, 463 U.S. 880, 893 (1983) (internal quotation marks omitted).

Our determination that the petitioners needed a CPC, rather than a COA, to proceed with their appeal was incorrect. The Supreme Court recently held that "when a habeas corpus petitioner seeks to initiate an appeal of the dismissal of a habeas corpus petition after April 24, 1996 (the effective date of AEDPA), the right to appeal is governed by the certificate of appealability (COA) requirements now found at 28 U.S.C. S 2253(c)." Slack v. McDaniel, 120 S.Ct. 1595, 1600 (2000)². Since the petitioners initiated their appeal after April 24, 1996, this requirement applies to them. Because we are empowered to issue a COA, see Fed. R. App. P. 22(b)(1) and S 2253(c)(1), we examine the petitioners' briefs to determine whether the individual claims meet the standard the Supreme Court established in Slack. We hold that the petitioners have made the requisite showing with respect to only five of the nine issues they seek to have us consider on appeal. We therefore deny the COA in part and exercise jurisdiction over only those issues which meet AEDPA's modest standard to proceed.

I.

AEDPA permits a court to issue a COA when "the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. S 2253(c)(2). A COA, unlike a CPC, requires the petitioner to meet the "substantial showing" standard with respect to each issue he seeks to raise on appeal. 28 U.S.C. S 2253(3). Otherwise, the standard for obtaining a COA remains the same. Indeed, in Slack, the Supreme Court noted that:

Except for substituting the word "constitutional " for the word "federal," S 2253 is a codification of the CPC standard announced in Barefoot v. Estelle , 463 U.S. at 894. Congress had before it the meaning Barefoot had given to the words it selected; and we give the language found in S 2253(c) the meaning ascribed it in Barefoot, with due note for the substitution of the word "constitutional."³

Slack, 120 S.Ct. at 1603.

In Barefoot, the Court established several ways in which a petitioner can make the "substantial showing of the denial of a [constitutional] right." To meet this "threshold inquiry," Slack, 120 S.Ct. at 1604, the petitioner "must demonstrate that the issues are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further." Barefoot, 463 U.S. at 893 n. 4 (emphasis added) (internal quotation marks omitted). Although not dispositive, "[i]n a capital case, the nature of the penalty is a proper consideration in determining whether to issue a certificate of [appealability] . . . ." Id. at 893. We will resolve any doubt about whether the petitioner has met the Barefoot standard in his favor. See Buxton v. Collins, 925 F.2d 816, 819 (5th Cir. 1991) ("Consistent with the Court's admonition [in Barefoot], we have warned that any doubts whether CPC should be issued are to be resolved in favor of the petitioner.") (citation omitted).

The Barefoot standard seeks to promote Congress' intent "to prevent frivolous appeals from delaying the States' ability to impose sentences, including death sentences" while at the same time protecting the right of petitioners to be heard. Barefoot, 463 U.S. at 892; see also Van Pilon v. Reed, 799 F.2d 1332, 1335 (9th Cir. 1986) ("[T]he purpose of the requirement of a certificate of probable cause is to prevent abuse of the writ through frivolous appeals.") (citation omitted). At this preliminary stage, we must be careful to avoid conflating the standard for gaining permission to appeal with the standard for obtaining a writ of habeas corpus. Indeed, the Supreme Court has cautioned that, in examining a petitioner's application to appeal from the denial of a habeas corpus petition, "obviously the petitioner need not show that he should prevail on the merits. He has already failed in that endeavor." Barefoot, 463 U.S. at 893 n. 4 (internal quotation marks omitted); see also Harris v. Vasquez, 901 F.2d 724, 725 (9th Cir. 1990) (Order of Noonan, J.) ("Petitioner must make `a substantial showing of the denial of a federal right.' This standard does not mean that the petitioner show [sic] that he will prevail on the merits.").

In non-capital as well as capital cases, the issuance of a COA is not precluded where the petitioner cannot meet the standard to obtain a writ of habeas corpus. See Jefferson, 2000 WL 862846, at *3 (7th Cir. June 29, 2000) (explaining that a COA should issue unless the claims are "utterly without merit").⁴ This general principle reflects the fact that the COA requirement constitutes a gatekeeping mechanism that prevents us from devoting judicial resources on frivolous issues while at the same time affording habeas petitioners an opportunity to persuade us through full briefing and argument of the potential merit of issues that may appear, at first glance, to lack merit.

The Supreme Court has made clear that the application of an apparently controlling rule can nevertheless be debatable for purposes of meeting the Barefoot standard in several cases. In Lozada v. Deeds, 498 U.S. 430 (1991) (per curiam), the Court held that, even though a question may be wellsettled in a particular circuit, the petitioner meets the modest CPC standard where another circuit has reached a conflicting view. There, the petitioner filed a habeas corpus petition in federal district court in Nevada, contending that he had received ineffective assistance of counsel. Id. at 430-31. Although he described his counsel's deficiencies, he failed to specify any prejudice therefrom. Id. at 431. The district court held that, under Ninth Circuit law, the failure to so specify was fatal to his petition and it further denied him a CPC. Id. Our court likewise denied him a CPC. Id. The Supreme Court reversed, holding that "the Court of Appeals erred in denying Lozada a certificate of probable cause because, under the standards set forth in Barefoot, Lozada made a substantial showing that he was denied the right to effective assistance of counsel." Id. at 432. This was so because, even though our circuit required a showing of prejudice, other circuits did not. Id. The Court reasoned, "[w]e believe the issue of prejudice caused by the alleged denial of the right to appeal could be resolved in a different manner from the one followed by the District Court. Since Strickland, at least two Courts of Appeals have presumed prejudice in this situation. " Id. The fact that another circuit had decided the issue in a different manner, in other words, rendered a seemingly wellestablished issue in our circuit debatable for purposes of meeting the Barefoot standard.

Similarly, in Slack, the Supreme Court recently held that an issue apparently settled by the law of our circuit remained debatable for purposes of issuing a COA. Slack , 120 S.Ct. at 1604. There, the district court dismissed claims in a habeas petition as second or successive under our decision in Farmer v. McDaniel, 98 F.3d 1548 (9th Cir. 1996), because he had not raised them in a previous petition that the court had dismissed without prejudice for exhaustion. Id. at 1601. Both the district court and this court denied him a CPC. Id. This prevented us from considering the continuing validity of Farmer, which conflicted with cases from other circuits as well with a case from our circuit. Id. at 1606. The Supreme Court reversed our denial of a CPC and remanded for us to determine whether a COA should issue. Id. at 1604. Under Slack, it is thus clear that we should not deny a petitioner an opportunity to persuade us through full briefing and argument to reconsider circuit law that apparently forecloses relief. Id. at 1606-07.

The issue of whether to grant a COA "becomes somewhat more complicated where, as here, the district court dismisses the [claims] based on procedural grounds." Slack, 120 S.Ct. at 1604. In those situations, the court must engage in a two-part Barefoot inquiry. Id. First, the court must decide whether "jurists of reason would find it debatable whether the...