Nigro v. Evans

Filing 53

ORDER signed by Judge Garland E. Burrell, Jr on 2/9/09 re 52 ORDERING that a certificate of appealability is issued in the present action. (Duong, D)

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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. M. EVANS, Respondent. / Petitioner, a state prisoner proceeding pro se, has timely filed a notice of appeal of this court's January 21, 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 PASQUALE NIGRO, Petitioner, 2:05-cv-0712-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 After review of the record petitioner has made a substantial showing of the denial of a constitutional right. Accordingly, IT IS HEREBY ORDERED that a certificate of appealability is issued in the present action. Dated: February 9, 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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