Gonzalez v. Runnels

Filing 74

ORDER signed by Senior Judge Lawrence K. Karlton on 9/17/2009 GRANTING 73 Motion for Certificate of Appealability. (Matson, R)

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 1 vs. D.L RUNNELS, WARDEN, Respondent. / Petitioner, a state prisoner proceeding with counsel has timely filed a notice of appeal of this court's August 24, 2009, dismissal 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 court, or is "`adequate to deserve encouragement to proceed further.'" Jennings v. Woodford, ORDER IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA ALEJANDRO RANGEL GONZALEZ, Petitioner, No. CIV S-05-1954 LKK GGH P

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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 issue presented in the instant petition: whether petitioner's due process rights were violated by the trial court's refusal to instruct the jury on petitioner's theory of defense, that the discharge of the firearm was grossly negligent, not intentional. Accordingly, IT IS HEREBY ORDERED that a certificate of appealability is issued in the present action. DATED: September 17, 2009.

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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