Opinion
No. CIV S-08-1429 GGH P.
March 2, 2009
ORDER
Petitioner, a state prisoner proceeding pro se, has not filed a notice of appeal of this court's January 14, 2009, denial of his application for a writ of habeas corpus. However, he did timely file a request for a certificate of appealability which will suffice as a notice of appeal. See Estrada v. Scribner, 512 F.3d 1227, 1236 (9th Cir. 2008). 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 minimally sufficient showing of the denial of a constitutional right in the following issue presented in the instant petition: 1) his life sentences pursuant to former Cal. Penal Code § 667.61(g) violate Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531 (2004).
Accordingly, IT IS HEREBY ORDERED that a certificate of appealability is issued in the present action. It is also ORDERED that the request for a COA stands in lieu of a notice of appeal. The appeal shall be processed to the Ninth Circuit.