Smithson v. Adams, et al

Filing 106

ORDER signed by Judge Garland E. Burrell, Jr on 2/5/08 ORDERING that a certificate of appealability is issued. (Dillon, M)

(HC) Smithson v. Adams, et al

Doc. 106

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. DERRAL ADAMS, Warden, et al., Respondent. / Petitioner, a state prisoner proceeding pro se, has timely filed a notice of appeal of this court's January 14, 2008 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 ///// 1
Dockets.Justia.com

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA THOMAS JOHN SMITHSON, Petitioner, 2:01-cv-1373-GEB-DAD-P

ORDER

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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 Petitioner has made a substantial showing of the denial of a constitutional right in the following issues presented in the instant petition: (1) whether petitioner was denied due process of law when the trial court allowed the prosecution to introduce evidence that he had suffered a prior conviction for burglary; (2) whether petitioner was denied the effective assistance of trial counsel; and (3) whether petitioner was denied due process of law because the evidence introduced at his trial was insufficient to support the attempted robbery and felony murder convictions and the robbery special circumstance finding. Accordingly, IT IS HEREBY ORDERED that a certificate of appealability is issued in the present action.

Dated: February 5, 2008

GARLAND E. BURRELL, JR. United States District Judge

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. 2

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