Spence v. Hickman

Filing 29

ORDER signed by Judge Garland E. Burrell, Jr. on 8/13/09 ORDERING that a Certificate of Appealability IS ISSUED in the present action. (Engbretson, K.)

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. ALEXANDER HICKMAN, Warden, Respondent. / Petitioner, a state prisoner proceeding pro se, has timely filed a notice of appeal of this court's July 6, 2009 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). /// /// 1 ORDER CHARLES FRANK SPENCE, Petitioner, 2:03-cv-1987-GEB-JFM-P IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

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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 Petitioner has made a substantial showing of the denial of a constitutional right in the following issues presented in the instant petition: (1) denial of due process and the privilege against self-incrimination by errors in adjudicating petitioner's motion to exclude his custodial statement as a violation of his Miranda2 rights; (2) insufficient evidence of first degree murder; (3) insufficient evidence of special circumstances; and (4) ineffective assistance of counsel in failing to investigate and present evidence of petitioner's strongest defense, i.e. that his discussions with Smithson amounted only to mere preparation not amounting to aiding and abetting. Accordingly, IT IS HEREBY ORDERED that a certificate of appealability is issued in the present action. Dated: August 13, 2009

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. In Miranda v. Arizona, the United States Supreme Court held that custodial interrogation must be preceded by advice to the potential defendant that he has the right to consult with a lawyer, the right to remain silent and that anything he says can be used in evidence against him. 384 U.S. 436, 469-73 (1966). 2
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