Shaw v. Campbell et al

Filing 90

ORDER signed by Judge Morrison C. England, Jr. on 02/06/09 ORDERING that petitioner's 89 Motion for Certificate of Appealability is GRANTED and that certificate of appealability is ISSUED. (Benson, A.)

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. ROSANNE CAMPBELL, et al., Respondents. / Petitioner, a state prisoner proceeding through counsel, has timely filed a notice of appeal of this court's January 9, 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 DAVID SHAW, SR., Petitioner, No. CIV S-05-1506 MCE GGH 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 right to present a defense based on exclusion of witnesses who would have impeached the victim (claim 1); 2) ineffective assistance of counsel based on counsel's failure to renew attempts to have impeachment witnesses testify (claim 2); 3) ineffective assistance of counsel based on failure to call a forensic intoxication expert (claim 3); 4) ineffective assistance of counsel for failure to exclude evidence that petitioner was a violent person (claim 6); 5) ineffective assistance of counsel for failing to properly advise petitioner of his right to testify (claim 8); 6) ineffective assistance of counsel for filing to call defense witnesses (claim 9); 7) ineffective assistance of counsel for failing to adequately cross-examine victim (claim 10). Accordingly, IT IS HEREBY ORDERED that a certificate of appealability is issued in the present action. Dated: February 6, 2009 ________________________________ MORRISON C. ENGLAND, 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

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