Simpson v. Evans

Filing 40

ORDER signed by Judge John A. Mendez on 08/31/09 GRANTING Certificate of Appealability re 39 Notice of Appeal. (Streeter, J)

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. M. EVANS, Warden, Respondent. / Petitioner, a state prisoner proceeding pro se, has timely filed a notice of appeal of this court's July 22, 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). 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 SHABONDY LAMAR SIMPSON, Petitioner, No. CIV S-05-0640 JAM DAD P

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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 his right to due process was violated by the introduction of perjured testimony at his trial; (2) whether his Sixth and Fourteenth Amendment rights were violated by the trial court's denial of his motion for new trial; (3) whether he received ineffective assistance of trial and appellate counsel; (4) whether the prosecutor committed misconduct by allowing one of the prosecution witnesses to give perjured testimony; (5) whether the prosecutor failed to disclose exculpatory evidence to the defense; and (6) whether the trial court violated his right to due process when it responded improperly to a question from the jury. Accordingly, IT IS HEREBY ORDERED that a certificate of appealability is issued in the present action. DATED: August 31, 2009

/s/ John A. Mendez U. S. District Court Judge
/simpson640.coa

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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