Opinion
No. 2:03-cv-0929-MCE-KJM-P.
August 8, 2006
ORDER
Petitioner, a state prisoner proceeding pro se, has timely filed a notice of appeal of this court's July 11, 2006 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). When, as here, the district court denies a habeas petition on procedural grounds without reaching the prisoner's underlying constitutional claims, a certificate of appealability should issue when the prisoner shows that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.Slack v. McDaniel, 529 U.S. 473, 484-85 (2000). The certificate of appealability must "indicate which specific issue or issues satisfy" the above requirements. 28 U.S.C. § 2253(c)(3).
The court finds that jurists of reason would find it at least debatable whether the claims asserted in petitioner's second amended petition for writ of habeas corpus state valid claims of the denial of constitutional rights. Also, jurists of reason would find it at least debatable whether it was correct to dismiss this action as moot. Therefore, the court will grant petitioner's request for a certificate of appealability.
Petitioner also asks that the court appoint counsel on appeal. Good cause appearing, petitioner's request will be granted.
Accordingly, IT IS HEREBY ORDERED that:
1. Petitioner's July 19, 2006 request for a certificate appealability is granted; and
2. Petitioner's July 19, 2006 request for appointment of counsel on appeal is granted.