Opinion
No. CIV S-05-1864 JAM GGH P.
May 21, 2009
ORDER
Petitioner, a state prisoner proceeding with counsel has timely filed a notice of appeal of this court's March 26, 2009, dismissal of his application for a writ of habeas corpus. 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: 1) whether petitioner's due process rights were violated by a judicial expansion of criminal liability as petitioner was found guilty of first degree murder as an aider and abettor while the direct perpetrator, tried in the same trial, was guilty of only voluntary manslaughter; and 2) whether there was an error in the jury instructions for failing to convey that petitioner's mens rea had to be assessed independently from the mens rea of the co-defendant.
Accordingly, IT IS HEREBY ORDERED that a certificate of appealability is issued in the present action.