Opinion
CASE NO. 2:06-cv-0858-RSL.
January 6, 2011
ORDER GRANTING IN PART CERTIFICATE OF APPEALABILITY
This matter comes before the Court on petitioner's "Motion for Issuance for a Certificate of Appealability." Dkt. # 25. Because petitioner filed his notice of appeal after April 24, 1996, his appeal is governed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which worked substantial changes to the law of habeas corpus. Under the amended version of 28 U.S.C. § 2253(c), a petitioner may not appeal the denial of a habeas corpus petition unless the district court or the Ninth Circuit issues a certificate of appealability identifying the particular issues that may be pursued on appeal. United States v. Asrar, 116 F.3d 1268 (9th Cir. 1997).
To obtain a certificate of appealability, the petitioner must make a substantial showing of the denial of a constitutional right. "Obviously the petitioner need not show that he should prevail on the merits. He has already failed in that endeavor."Barefoot v. Estelle, 463 U.S. 880, 893 n. 4 (1983). Rather, he must demonstrate that the resolution of the habeas petition is debatable among reasonable jurists or that the issues presented were "adequate to deserve encouragement to proceed further." Slack v. McDaniel, 529 U.S. 473, 483-84 (2000).
Having reviewed the record in this case, including the Report and Recommendation of the Honorable J. Kelley Arnold, United States Magistrate Judge, the Court finds that, to the extent plaintiff has challenged the sentencing court's reliance on aggravating factors not found by the jury to impose upper base term sentences on Counts 3 and 4, those issues would be debatable among reasonable jurists and deserve to proceed further. The Court's findings regarding petitioner's other grounds for review, namely the inadequacy of counsel and the constitutionality of the imposition of consecutive sentences, are not debatable and should not be the subject of an appeal.
For all of the foregoing reasons, petitioner's request for a certificate of appealability is GRANTED in part and DENIED in part.
Dated this 5th day of January, 2011.