Brown v. Warden
Filing
19
ORDER signed by Judge Frank C. Damrell, Jr on 3/4/10 ORDERING that a certificate of appealability is issued in the present action. (Becknal, R)
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 vs. WARDEN, et al., Respondent. / ORDER IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA SOFALO MALTESE BROWN, Petitioner, No. CIV S-09-0216 FCD GGH P
The Ninth Circuit has remanded this petition to the district court for the limited purpose of granting or denying a certificate of appealability. 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)).1 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. 1
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Petitioner has made a substantial showing of the denial of a constitutional right in the following issue presented in the instant petition: claim 2, whether the prosecutor unlawfully intimidated a witness. Accordingly, IT IS HEREBY ORDERED that a certificate of appealability is issued in the present action. DATED: March 4, 2010.
_______________________________________ FRANK C. DAMRELL, JR. UNITED STATES DISTRICT JUDGE
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