Opinion
No. CIV S-03-2660 LKK JFM P.
June 27, 2007
ORDER
Petitioner, a state prisoner proceeding through counsel, has timely filed a notice of appeal of this court's March 29, 2007 denial of his application for a writ of habeas corpus together with a request for a certificate of appealability pursuant to 28 U.S.C. § 2253(c).
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 seeks a certificate of appealability for his first, fifth, and sixth claims for relief. Petitioner's first claim for relief is that his right to due process was violated because there was insufficient evidence to support his conviction. Petitioner's fifth claim for relief is that his rights under the Fifth Amendment were violated by the prosecutor's improper comment on petitioner's failure to testify. Petitioner's sixth claim for relief is that his Sixth Amendment right to the effective assistance of counsel was violated by his counsel's failure to object to the prosecutor's comment that is the subject of his fifth claim for relief. Petitioner has made a substantial showing of the denial of a constitutional right in those claims.
Accordingly, IT IS HEREBY ORDERED that:
1. Petitioner's April 2, 2007 request for a certificate of appealability is granted;
2. A certificate of appealability is issued in the present action for petitioner's first, fifth and sixth claims for relief; and
3. The Clerk of the Court is directed to process petitioner's appeal to the United States Court of Appeals for the Ninth Circuit.