Opinion
Civil Action No. 08-40217-FDS
11-20-2012
DAVID W. COLLINS, Petitioner, v. GARY RODEN, Respondent.
ORDER ON CERTIFICATE OF APPEALABILITY
SAYLOR, J.
On November 19, 2012, this Court issued an order dismissing the petition for a writ of habeas corpus. The basis for the Court's ruling is provided in its Memorandum and Order dismissing the petition.
To appeal the final order in a proceeding instituted under 28 U.S.C. § 2254, the petitioner must first obtain a Certificate of Appealability ("COA") from a circuit justice or a district court. See 28 U.S.C. § 2253(c). A COA will issue only if the petitioner "has made a substantial showing of the denial of a constitutional right." § 2253(c)(2). That standard is satisfied by "demonstrating that jurists of reason could disagree with the district court's resolution of [petitioner's] constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further." Miller-El v. Cockrell, 537 U.S. 322, 327 (2003) (citing Slack v. McDaniel, 529 U.S. 473, 484 (2000)).
Petitioner presented two claims of ineffective assistance of counsel in his petition, based on: (1) counsel's failure to file a written pretrial motion to admit evidence of the victim's sexual assaults on petitioner's nieces as a motive for the victim to lie; and (2) counsel's decision to cross-examine the victim's mother concerning an illegally-recorded conversation with petitioner that the trial court had previously ruled inadmissible. Petitioner's contention that counsel was ineffective for failing to file a pretrial motion to admit evidence presents a colorable claim as to which a reasonable jurist could disagree with the Court's conclusion, at least sufficiently so to satisfy the standard. Petitioner's other argument that counsel was ineffective in cross-examining a witness regarding the illegal recording does not, however, merit the issuance of a COA.
Accordingly, a certificate of appealability is GRANTED as to petitioner's claim that his counsel should have filed a pretrial motion to admit evidence, and is otherwise DENIED.
So Ordered.
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F. Dennis Saylor IV
United States District Judge