Lo v. Kane
Filing
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ORDER signed by Chief Judge Morrison C. England, Jr. on 12/4/2012 ORDERING that a certificate of appealability is GRANTED on Claims VII and VIII as numbered by the Magistrate Judge in the 6/17/2011 findings and recommendations. A certificate of appealability is DENIED as to Petitioner's other Claims. (Zignago, K.)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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PAO LO,
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Petitioner,
2: 05 - cv - 1754 - MCE TJB
Respondent.
ORDER
vs.
A.P. KANE,
________________________________/
Petitioner, a state prisoner, has filed an application for a writ of habeas corpus pursuant to
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28 U.S.C. § 2254. On December 9, 2011, an order and judgment were issued which adopted the
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findings and recommendations of the Magistrate Judge which recommended denying Claims I-
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VI, but rejected the findings and recommendations as to Claims VII and VIII. Thus, the entire
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habeas petition was denied.
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Petitioner filed a notice of appeal on January 6, 2012 and subsequently filed a request for
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a certificate of appealability on January 12, 2012. If Petitioner wishes to appeal the court’s
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decision, a certificate of appealability must issue before he can do so. See 28 U.S.C.
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§ 2253(c)(1). A certificate of appealability may issue where “the applicant has made a
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substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).
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The certificate of appealability must “indicate which specific issue or issues satisfy” the
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requirement. 28 U.S.C. § 2253(c)(3).
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A certificate of appealability should be granted for any issue that petitioner can
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demonstrate is “‘debatable among jurists of reason,’” could be resolved differently by a different
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court, or is “‘adequate to deserve encouragement to proceed further.’” Jennings v. Woodford,
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290 F.3d 1006, 1010 (9th Cir. 2002) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 (1983)).
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Petitioner has demonstrated that a certificate of appealability should be granted on Claims
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VII and VIII as numbered by the Magistrate Judge in the June 17, 2011 findings and
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recommendations.
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Accordingly, IT IS HEREBY ORDERED that a certificate of appealability is GRANTED
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on Claims VII and VIII as numbered by the Magistrate Judge in the June 17, 2011 findings and
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recommendations. A certificate of appealability is DENIED as to Petitioner’s other Claims.
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Dated: December 4, 2012
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________________________________
MORRISON C. ENGLAND, JR.
UNITED STATES DISTRICT JUDGE
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