Opinion
No. C 04-3038 CW.
September 24, 2008
ORDER GRANTING CERTIFICATE OF APPEALABILITY
Petitioner filed a habeas corpus petition pursuant to 28 U.S.C. § 2254. On August 12, 2008, the Court entered judgment denying the petition. Petitioner seeks a certificate of appealability only in regard to his claim based on a violation of Brady v. Maryland, 373 U.S. 83 (1963).
A habeas petitioner may not appeal a final order in a federal habeas proceeding without first obtaining a certificate of appealability (formerly known as a "certificate of probable cause to appeal"). 28 U.S.C. § 2253(c); Fed.R.App.P. 22(b). A certificate of appealability should be granted "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 issue or issues satisfy the showing required by § 2253(c)(2). 28 U.S.C. § 2253(c)(3).
Section 2253(c)(2) codified the standard announced by the United States Supreme Court in Barefoot v. Estelle, 463 U.S. 880, 892-93 (1983). In Barefoot, the Court explained that "a substantial showing of the denial of [a] federal right" means that a petitioner "must demonstrate that the issues are debatable among jurists of reason; that a court could resolve the issues [in a different manner], or that the questions are adequate to deserve encouragement to proceed further." Id. at 893 n. 4
The Court finds that Petitioner has made a sufficient showing of the denial of a constitutional right to justify a certificate of appealability in regard to his Brady claim.
CONCLUSION
Accordingly, the Court grants Petitioner's certificate of appealability.
IT IS SO ORDERED.