Varnum v. Kirkland, et al

Filing 29

CERTIFICATE OF APPEALABILITY signed by Judge Garland E. Burrell, Jr on 2/17/09 regarding 27 Notice of Appeal. (Carlos, 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. RICHARD KIRKLAND, et al., Respondents. / Petitioner, a state prisoner proceeding pro se, has filed a timely notice of appeal of this court's January 21, 2009 order denying his application for 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 "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 STEVEN LEE VARNUM, Petitioner, 2:04-cv-2659-GEB-CHS-P IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA 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 in his petition that his confession was unconstitutionally admitted into evidence at his trial. Accordingly, IT IS HEREBY ORDERED that a certificate of appealability shall issue in the present action. Dated: February 17, 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. 2 1

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