Weissman v. Clark
- William Orrick
- 3:22-cv-04005
- U.S. District Court · Northern District of California
- 2
In Weissman v. Clark, Judge Orrick issued a revised appeal certificate identifying state-conviction claims that may be appealed.
Steven Irving Weissman’s ability to pursue an appeal of the identified claims concerning his state conviction; the order also concerns Ken Clark as the named defendant.
What happened
In Weissman v. Clark, the court had previously denied Steven Irving Weissman’s federal petition challenging his state conviction. It had issued an appeal certificate, but the certificate did not identify which issues could be appealed.
The Ninth Circuit sent the case back for the limited purpose of identifying those issues. The revised certificate covers Weissman’s claims about prosecutorial misconduct, ineffective assistance by his defense lawyer, jury instructions on multiple-victim enhancements, and cumulative trial error.
Judge William H. Orrick issued the certificate for each identified claim because reasonable judges could disagree about whether the court’s earlier assessment of the constitutional claims was correct. This order specifies the issues for appeal and does not decide their merits.
The detailed version
- Weissman v. Clark · No. 3:22-cv-04005
- William Orrick
- Mar. 4, 2024
Background
On December 21, 2023, the court denied Steven Irving Weissman’s petition seeking federal relief from his state conviction on five counts involving lewd acts on minors and aggravated sexual assault of a minor. That order also issued a certificate of appealability, which is a court document identifying claims that may proceed on appeal. The certificate did not specify the appealable issues. The Ninth Circuit remanded the case for the limited purpose of issuing a modified certificate that identified those issues.
Issues Identified for Appeal
The revised certificate covers Weissman’s prosecutorial-misconduct claims alleging that the prosecutor:
- failed to correct known false testimony by prosecution witness R.A.; - improperly debriefed an excused juror before closing argument at trial; - failed to disclose gifts to a witness, allegedly violating the rule requiring disclosure of favorable evidence; and - vouched for evidence and violated the witness-advocate rule.
The certificate also covers, to the extent Weissman raised them, ineffective-assistance claims concerning defense counsel’s failure to object to the alleged disclosure and witness-advocacy issues. It separately covers ineffective-assistance claims alleging that defense counsel failed to object to improper references to Weissman’s sexual orientation during trial and failed to investigate records concerning prosecution witness T.B.’s arrest.
Finally, the certificate covers Weissman’s claim that the trial court committed structural error by failing to instruct the jury on the proper elements of multiple-victim enhancements, as well as his claim of prejudicial cumulative error.
Ruling
Judge William H. Orrick issued the certificate for each of Weissman’s claims because reasonable judges could find the court’s assessment of those constitutional claims debatable or wrong. The order specifies the issues for appeal. It does not decide whether Weissman will prevail on any of those claims, and it does not revisit the earlier denial of federal relief.
Disposition
The court issued a revised certificate of appealability identifying the listed issues for appeal.
Read the full 2-page opinion on CourtListener, the free public archive maintained by the Free Law Project.