Opinion
No. CIV S-08-2162 GGH P.
October 14, 2009
ORDER
Petitioner, a state prisoner proceeding pro se, filed a timely request for a 30-day extension of time to file his appeal of the August 11, 2009, denial of his application for a writ of habeas corpus. Before the court ruled on the time extension request, petitioner filed his notice of appeal. The court will grant the extension of time, pursuant to Fed.R.App.P. 4(a)(5)(A), nunc pro tunc, and will deem the September 28, 2009, filing of the notice of appeal (docket # 20) and motion for certificate of appealability (docket # 21) timely. 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: whether admission of the victim's statements violated the Confrontation Clause.
Accordingly, IT IS HEREBY ORDERED that:
1. Petitioner's September 10, 2009 (docket # 19) motion for an extension of time to file an appeal is granted, nunc pro tunc, and the September 28, 2009 (docket # 20), notice of appeal and motion for certificate of appealability (docket # 21) are deemed timely filed; and
2. A certificate of appealability is issued in the present action.