Burbine v. Scribner

Filing 26

ORDER signed by Senior Judge Lawrence K. Karlton on 12/23/09 ORDERING that a COA is ISSUED in the present action. (Engbretson, K.)

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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. A. K. SCRIBNER, WARDEN, Respondent. / Petitioner, a state prisoner proceeding pro se, has timely filed a notice of appeal of this court's September 4, 2009 denial of his application for a writ of habeas corpus. Petitioner has also filed a request for a certificate of appealability. See 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 ORDER IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA BRADFORD G. BURBINE, Petitioner, No. CIV S-04-1691 LKK EFB P 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 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 he was denied due process and the right to confront the witnesses against him when the trial court admitted the hearsay testimony of the mother of one of the victims; and (2) whether he was denied the right to effective assistance of counsel. Accordingly, IT IS HEREBY ORDERED that a certificate of appealability is issued in the present action. DATED: December 23, 2009. 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 1

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