Opinion
No. CIV S-03-2505-FCD-CMK-P.
November 1, 2007
ORDER
Petitioner, a state prisoner proceeding with appointed counsel and in forma pauperis, brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pending before the court is petitioner's request for a certificate of appealability (Doc. 75), filed on October 8, 2007.
Petitioner, a state prisoner proceeding pro se, has timely filed a notice of appeal of this court's denial of his application for a writ of habeas corpus. Before petitioner can appeal this decision, a certificate of appealability must issue.See 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 court must either issue a certificate of appealability indicating which issues satisfy the required showing or must state the reasons why such a certificate should not issue. See Fed.R.App.P. 22(b). 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)).
Petitioner has made a substantial showing of the denial of a constitutional right in the following issues presented in the instant petition: (1) Whether the in-court identification was tainted; and (2) Whether certain evidence admitted at trial should have been suppressed.
Accordingly, IT IS HEREBY ORDERED that a certificate of appealability is issued in the present action.