Opinion
No. C-06-00496 RMW.
July 7, 2008
On March 21, 2008, the court denied petitioner's petition for writ of habeas corpus and entered judgment. On April 14, 2008, petitioner, now proceeding with the assistance of counsel after the court granted petitioner's motion for nunc pro tunc appointment of counsel, filed a motion for a certificate of appealability. Petitioner also seeks to proceed in forma pauperis on appeal.
A. Certificate of Appealability
Petitioner's petition was based on the contention that the denial of presentence and post-conviction time credits pursuant to Cal. Penal Code § 2933.1 for crimes committed before the effective date of § 2933.1 violated the Ex Post Facto Clause (U.S. Const. Art. I, § 10, cl. 1). The State has argued that petitioner's entry into a plea agreement constituted a waiver of his ex post facto claims. Petitioner seeks a certificate of appealability on the two issues presented in his petition: (1) that the state court's decision that credit limits were part of the plea bargain rather than advisements as to the penal consequences of the plea was contrary to or an unreasonable application of federal constitutional law; and (2) that the state court's conclusion that petitioner knowingly and intelligently waived his ex post facto claim was contrary to and an unreasonable application of federal constitutional law.
A judge shall grant a certificate of appealability "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 must indicate which issues satisfy this standard. Id. § 2253(c)(3). Upon the filing of a notice of appeal and a request for a certificate of appealability, the district court shall indicate which specific issue or issues satisfy the standard for issuing a certificate, or state its reasons why a certificate should not be granted. United States v. Asrar, 116 F.3d 1268, 1270 (9th Cir. 1997) (citing 28 U.S.C. § 2253(c)(3)).
Section 2253(c)(2) codified the standard announced by the Supreme Court in Barefoot v. Estelle, 463 U.S. 880, 892-93 (1983). In Barefoot, the Court explained that "a substantial showing of the denial of [a] federal right" means that a petitioner "must demonstrate that the issues are debatable among jurists of reason; that a court could resolve the issues [in a different manner], or that the questions are adequate to deserve encouragement to proceed further." Id. at 893 n. 4 (citations and internal quotations omitted; emphasis in original); see Lozada v. Deeds, 498 U.S. 430, 432 (1991) (reversing Ninth Circuit's denial of certificate of probable cause on claim of denial of right to direct appeal despite petitioner's deficient showing of prejudice; issue could have been resolved differently where other circuits presumed prejudice in such a situation).
In light of the foregoing standard, the court finds that the issues raised in petitioner's motion merit a certificate of appealability on the two issues set forth above. Accordingly, the court hereby grants petitioner's motion for a certificate of appealability.
B. Leave to Proceed In Forma Pauperis
Federal Rule of Appellate Procedure 24 requires a party to a district court action who desires to appeal in forma paupers to file a motion in the district court. Fed.R.App.P 24(a). Petitioner has also filed two motions for leave to proceed in forma pauperis, the second one attaching his inmate trust account statement showing an available balance of $0. The court finds that petitioner's appeal is taken in good faith and that he is entitled to proceed in forma pauperis. Fed.R.App.P. 24(a). Further, although the court denied petitioner's original request to proceed in forma pauperis with the petition and directed him to pay the $5 filing fee for his habeas petition, the court subsequently made a finding of petitioner's indigence when it granted petitioner's motion for nunc pro tunc appointment of counsel after finding that petitioner could not afford to retain counsel. Accordingly, petitioner's request to proceed in forma pauperis on appeal is granted.
IT IS SO ORDERED.