Opinion
No. C 08-1542 MHP.
August 3, 2010
MEMORANDUM ORDER Re: Certificate of Appealability
On July 2, 2010, the court denied petitioner Andrew Clayton's petition for a writ of habeas corpus under 28 U.S.C. section 2254. Docket No. 10 (Order). Petitioner has applied for a certificate of appealability ("COA") under 28 U.S.C. section 2253. Docket No. 13 (Application).
28 U.S.C. section 2253 requires a petitioner to obtain a COA from the district court prior to filing an appeal. A COA may issue when "the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). The "substantial showing" may be satisfied when the petitioner demonstrates "that reasonable jurists could debate whether . . . the petition should have been resolved in a different manner or that the issues presented were `adequate to deserve encouragement to proceed further.'" Slack v. McDaniel, 529 U.S. 473, 483-84 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n. 4 (1983)).
In its denial of petitioner's petition, the court found that petitioner could not demonstrate that the hearsay statement he sought to introduce bore persuasive assurances of trustworthiness. In his application for a COA, petitioner argues that the excluded hearsay statement is substantially consistent with the prosecution's theory of the case. That is not the standard by which admissibility is determined. Due to the lack of persuasive assurance, as required by Chambers v. Mississippi, 410 U.S. 284, 302 (1973), the state court's exclusion of the hearsay statement was not contrary to or an unreasonable application of clearly established Federal law, nor was it based on an unreasonable determination of the facts in light of the evidence presented in the state court proceedings. Consequently, reasonable jurists would not find the court's assessment debatable or wrong.
Petitioner's request for a COA is DENIED. The Clerk shall forward the case file to the United States Court of Appeals for the Ninth Circuit. United States v. Asrar, 116 F.3d 1268, 1270 (9th Cir. 1997).
CONCLUSION
For the foregoing reasons, petitioner's request for a certificate of appealability is DENIED.
IT IS SO ORDERED.