Opinion
2:97-cv-0018-GEB-GGH-P.
September 12, 2007
ORDER
Petitioner, a state prisoner proceeding through counsel, has timely filed a notice of appeal of this court's August 13, 2007, denial 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 issues presented in the instant petition: 1) whether petitioner received ineffective assistance of trial and appellate counsel; 2) whether the district court erred in denying petitioner's request to stay this action in order to exhaust stand-alone claims relating to juror Geroux.
Accordingly, IT IS HEREBY ORDERED that a certificate of appealability is issued in the present action.