No. CIV S-04-0700 FCD GGH P.
May 21, 2009
Petitioner, a state prisoner proceeding pro se, has timely filed a notice of appeal of this court's denial April 24, 2009, 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 due process was violated by imposition of a 31-year-to-life sentence when the trial court only advised petitioner, at the time of his no-contest plea to voluntary manslaughter by use of a knife, that his maximum sentence could be 25 years to life; 2) whether petitioner was subjected to ineffective assistance of counsel with regard to imposition of the sentence; 3) whether sufficient evidence supported the trial court's finding that petitioner was sane at the time of the offense.
Accordingly, IT IS HEREBY ORDERED that a certificate of appealability is issued in the present action.