Opinion
No. CIV S-05-2262 LKK EFB P.
October 17, 2008
ORDER
Petitioner, a state prisoner proceeding with counsel, has filed a request for a certificate of appealability so that he may appeal this court's September 29, 2008, denial of his motion filed pursuant to Rule 60(b) of the Federal Rules of Civil Procedure. For the reasons explained, the request is granted.
The final order of a district court in a habeas action is reviewable on appeal. 28 U.S.C. § 2253(a). However, review may be had only if a certificate of appealability has issued. 28 U.S.C. § 2253(a); Fed.R.App.P. 22(b)(1). Under the applicable statute, 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). However, when the basis of the district court's final order is a procedural ground and the court has not reached the prisoner's underlying constitutional claim, a certificate should issue when the prisoner shows that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling. Slack v. McDaniel, 529 U.S. 473, 484-85 (2000). The court should issue the certificate with respect to 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)). Moreover, the certificate must "indicate which specific issue or issues satisfy" the requirement. 28 U.S.C. § 2253(c)(3).
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.
The court finds that the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court correctly denied the Rule 60(b) motion filed in the instant case. Thus, the court issues a certificate of appealability on the following question: whether the district court correctly denied the Rule 60(b) motion that the petitioner filed in the instant case.
Accordingly, IT IS HEREBY ORDERED that a certificate of appealability is issued in the present action.