Opinion
No. C 02-05384 SI.
September 28, 2005
ORDER GRANTING CERTIFICATE OF APPEALABILITY
Petitioner Roosevelt Franklin filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, which was denied on the merits by order filed September 14, 2005. Petitioner now seeks a certificate of appealability pursuant to Fed R. App. P. 22(b), on the following issues: (1) whether his right to due process was violated when the trial court applied "serious felony" enhancements based solely on this admission that he had been previously convicted of offenses that were not per se "serious felonies"; (2) whether his Sixth and Fourteenth Amendment rights were violated by the application of sentencing enhancements based on facts neither admitted by the defendant nor proven beyond a reasonable doubt; and (3) whether his trial counsel rendered ineffective assistance by failing to object to the application of sentencing enhancements under these circumstances.
A judge shall grant a certificate of appealability "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). 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), to the effect 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 (internal quotations omitted).
Although this Court ultimately rejected his claims, petitioner did demonstrate that the issues are debatable, and accordingly this Court GRANTS a certificate of appealability on that the requested issues.
IT IS SO ORDERED.