(HC) Lo v. Kane, No. 2:2005cv01754 - Document 62 (E.D. Cal. 2012)
Court Description: ORDER signed by Chief Judge Morrison C. England, Jr. on 12/4/2012 ORDERING that a certificate of appealability is GRANTED on Claims VII and VIII as numbered by the Magistrate Judge in the 6/17/2011 findings and recommendations. A certificate of appealability is DENIED as to Petitioner's other Claims. (Zignago, K.)
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(HC) Lo v. Kane Doc. 62 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 PAO LO, 12 13 14 15 16 17 Petitioner, 2: 05 - cv - 1754 - MCE TJB Respondent. ORDER vs. A.P. KANE, ________________________________/ Petitioner, a state prisoner, has filed an application for a writ of habeas corpus pursuant to 18 28 U.S.C. § 2254. On December 9, 2011, an order and judgment were issued which adopted the 19 findings and recommendations of the Magistrate Judge which recommended denying Claims I- 20 VI, but rejected the findings and recommendations as to Claims VII and VIII. Thus, the entire 21 habeas petition was denied. 22 Petitioner filed a notice of appeal on January 6, 2012 and subsequently filed a request for 23 a certificate of appealability on January 12, 2012. If Petitioner wishes to appeal the court’s 24 decision, a certificate of appealability must issue before he can do so. See 28 U.S.C. 25 § 2253(c)(1). A certificate of appealability may issue where “the applicant has made a 26 substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). 1 Dockets.Justia.com 1 The certificate of appealability must “indicate which specific issue or issues satisfy” the 2 requirement. 28 U.S.C. § 2253(c)(3). 3 A certificate of appealability should be granted for any issue that petitioner can 4 demonstrate is “‘debatable among jurists of reason,’” could be resolved differently by a different 5 court, or is “‘adequate to deserve encouragement to proceed further.’” Jennings v. Woodford, 6 290 F.3d 1006, 1010 (9th Cir. 2002) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 (1983)). 7 Petitioner has demonstrated that a certificate of appealability should be granted on Claims 8 VII and VIII as numbered by the Magistrate Judge in the June 17, 2011 findings and 9 recommendations. 10 Accordingly, IT IS HEREBY ORDERED that a certificate of appealability is GRANTED 11 on Claims VII and VIII as numbered by the Magistrate Judge in the June 17, 2011 findings and 12 recommendations. A certificate of appealability is DENIED as to Petitioner’s other Claims. 13 Dated: December 4, 2012 14 15 16 ________________________________ MORRISON C. ENGLAND, JR. UNITED STATES DISTRICT JUDGE 17 18 19 20 21 22 23 24 25 26 2
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