Opinion
04 Civ. 4032 (DRH).
March 13, 2008
ORDER
By Memorandum and Order dated February 13, 2008 this Court denied the petition for habeas corpus. Presently before the Court is Petitioner's application for a certificate of appealability.
Rule 22(b) of the Federal Rules of Appellate Procedure provides that "[i]n a habeas corpus proceeding in which the detention complained of arises from process by a state court . . . the applicant cannot take an appeal unless a circuit justice or a circuit or district judge issues a certificate of appealability under 28 U.S.C. § 2253(c)."
Section 2253(c) provides that "[a] certificate of appealability may issue . . . only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). A "substantial showing" does not require that a petitioner demonstrate that he would prevail on the merits in his appeal, but only that the issues he raises are debatable among jurists of reason; that a court could resolve the issues differently; or that the questions are adequate to deserve encouragement to proceed further. See Miller-EL v. Cockrell, 537 U.S. 322, 336 (2003); Barefoot v. Estelle, 463 U.S. 880, 893 n. 4; Middleton v. Att'ys Gen'l of the States of New York, 396 F.3d 207, 209 (2005).
In this Court's view, the Petitioner has satisfied his burden for a certificate of appealability with regard to the issues of whether the photographic "show-up" was impermissibly suggestive and whether the failure to disclose the pending civil lawsuit constituted a Brady violation. Reasonable jurists could debate these issues.
Accordingly, the Court grants the certificate of appealability.