Gruber v. Tilton, et al.

Filing 24

ORDER Granting in Part and Denying in Part Certificate of Appealability signed by District Judge Janis L. Sammartino on 10/07/2009. (Flores, E)

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 27 28 A Certificate of Appealability ("COA") is required pursuant to 28 U.S.C. § 2253 before a petitioner can pursue an appeal. A COA will issue when the petitioner makes a "substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c); Slack v. McDaniel, 529 U.S. 473, 478 (2000) (after April 24, 1996, right to appeal is governed by COA requirements of 28 U.S.C. § 2253(c)). When a district court has rejected constitutional claims on the merits, a "substantial showing" requires a demonstration that "reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong" or that "the questions are adequate to deserve encouragement to proceed further." Lambright v. Stewart, 220 F.3d 1022, 1025 (9th Cir. 2000), quoting Slack, 529 U.S. at 484 and Barefoot v. Estelle, 463 U.S. 880, 893 n. 4 (1983) (internal quotation marks omitted). The standard for gaining permission to appeal does // 1
1:08cv0524

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA FRESNO DIVISION RICHARD WILMER GRUBER, Petitioner, vs. JAMES TILTON, et al., Civil No. 1:08-CV-0524-JLS (PCL)

ORDER GRANTING IN PART AND DENYING IN PART CERTIFICATE OF APPEALABILITY

Respondents.

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not require a showing that a petitioner should prevail on the merits. Lambright, 220 F.3d at 1025, quoting Barefoot, 463 U.S. at 893 n. 4. Pursuant to 28 U.S.C. § 2253, the Court GRANTS Petitioner a Certificate of Appealability on the claims that constitutionally insufficient evidence was presented that Petitioner "knew" the Uniform Commercial Code financial statements ("UCC-1s") were "false" or "forged" to support a conviction under California Penal Code section 115(a) and that constitutionally insufficient evidence was presented that the UCC-1s themselves were "false" or "forged" to support a conviction under California Penal Code section 115(a). (Petition, Grounds One and Two.) A Certificate of Appealability as to the California state law claims (Petition, Grounds Three and Four) is DENIED. IT IS SO ORDERED.

DATED: October 7, 2009 Honorable Janis L. Sammartino United States District Judge

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1:08cv0524