Opinion
No. 2:03-cv-02674-MCE-GGH P.
April 3, 2009
ORDER
Petitioner, a state prisoner proceeding with appointed counsel, has timely filed a notice of appeal of this court's February 9, 2009, dismissal of his application for a writ of habeas corpus. Before petitioner can appeal this decision, a certificate of appealability must issue. 28 U.S.C. § 2253(c); Fed.R.App.P. 22(b).
A certificate of appealability may issue under 28 U.S.C. § 2253 "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). The certificate of appealability must "indicate which specific issue or issues satisfy" the requirement. 28 U.S.C. § 2253(c)(3).
A certificate of appealability should be granted for any issue that petitioner can demonstrate is "`debatable among jurists of reason,'" could be resolved differently by a different court, or is "`adequate to deserve encouragement to proceed further.'"Jennings v. Woodford, 290 F.3d 1006, 1010 (9th Cir. 2002) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 (1983)).
Except for the requirement that appealable issues be specifically identified, the standard for issuance of a certificate of appealability is the same as the standard that applied to issuance of a certificate of probable cause. Jennings, at 1010.
Petitioner has made a substantial showing of the denial of a constitutional right in the following issue presented in the instant petition, whether trial and appellate counsel were ineffective for: 1) failing to challenge the appointment of one instead of two psychiatrists or psychologists; 2) failing to challenge the presence of a support person during the accuser's testimony; 3) failing to challenge the admission of evidence relating to genital injuries; 4) failing to request a self defense instruction; 5) failing to request an instruction on attempted voluntary manslaughter; 6) failing to object to the issuance of an erroneous jury instruction.
Accordingly, IT IS HEREBY ORDERED that a certificate of appealability is issued in the present action.