Opinion
No. CIV S-03-0543 JAM DAD P.
October 22, 2008
ORDER
Petitioner, a state prisoner proceeding pro se, has timely filed a notice of appeal of this court's August 7, 2008 denial 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 the evidence was insufficient to support his conviction on count one: making terrorist threats; (2) whether the trial court violated his constitutional rights by limiting his efforts to impeach and cross-examine the complaining witness; (3) whether his right to due process was violated when the trial court allowed the prosecutor to introduce evidence of petitioner's prior acts of misconduct; and (4) whether his pretrial, trial, and appellate counsel rendered ineffective assistance. Accordingly, a certificate of appealability will be issued in the present action.
On September 3, 2008, petitioner filed a request to proceed in forma pauperis on appeal. The court file reflects that petitioner paid the filing fee for this action.
Rule 24(a) of the Federal Rules of Appellate Procedure provides that a party to a district court action who desires to appeal in forma pauperis on appeal must file a motion in the district court which:
(A) shows in the detail prescribed by Form 4 of the Appendix of Forms the party's inability to pay or to give security for fees and costs;
(B) claims an entitlement to redress; and
(C) states the issues that the party intends to present on appeal.
Fed.R.App.P. 24(a)(2). Petitioner has attached the appropriate affidavit which demonstrates his inability to pay or to give security for fees and costs. In his September 3, 2008 request for a certificate of appealability, petitioner claimed entitlement to redress and described the issues he intended to present on appeal. Petitioner has complied with the requirements of Fed.R.App.P. 24(a). Accordingly, his request to proceed in forma pauperis on appeal will be granted.
Petitioner has also filed a request for the appointment of counsel. This request will be denied without prejudice to its renewal in the Ninth Circuit Court of Appeals.
Accordingly, IT IS HEREBY ORDERED that:
1. A certificate of appealability is issued in the present action;
2. Petitioner's September 3, 2008 request to proceed in forma pauperis on appeal is granted; and
3. Petitioner's September 3, 2008 request for the appointment of counsel is denied without prejudice to its renewal in the Ninth Circuit Court of Appeals.