Rodriguez v. Ercole, No. 1:2007cv00415 - Document 18 (S.D.N.Y. 2010)

Court Description: OPINION AND ORDER: For the reasons set forth above, I hereby adopt the R&R and deny Rodriguez's section 2254 petition. The next question is whether this Court should issue a Certificate of Appealability ("COA"). For a COA to issue, pet itioner must make a "substantial showing of the denial of a constitutional right." A "substantial showing" does not require a petitioner to demonstrate that he would prevail on the merits, but merely that reasonable jurists could debate whether "the petition should have been resolved in a different manner or that the issues presented were 'adequate to deserve encouragement to proceed further. The issues raised in petitioner's Objections were not easily decided and it is possible that a different judge would have reached a different conclusion. Accordingly, I hereby grant a certificate of appealability as to whether petitioner's trial counsel was ineffective for: (1) not requesting a defense-against-robbery charge; and (2) not objecting to the justification charge given by the trial judge. The Clerk of the Court is directed to close this motion and this case. (Signed by Judge Shira A. Scheindlin on 6/7/2010) (jfe)