Morris v. Carey

Filing 96

ORDER signed by Judge Garland E. Burrell, Jr on 04/11/10 GRANTING 95 Motion for Certificate of Appealability. (Williams, D)

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. THOMAS CAREY, et al., Respondents. / Petitioner, a state prisoner proceeding through counsel, has timely filed a notice of appeal of this court's March 5, 2010 denial of his application for a writ of habeas corpus together with a motion for a certificate of appealability pursuant to 28 U.S.C. § 2253(c) and 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 ROLON LAMARR MORRIS, II, Petitioner, No. 2:06-cv-0354 GEB JFM (HC)

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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 issue(s) presented in the instant petition: (1) whether the prosecutor exercised a peremptory challenge to strike an African American juror on the basis of race, in violation of Batson v. Kentucky, 476 U.S. 79 (1986); and (2) whether petitioner's right to due process was violated by admission at trial of unreliable identification evidence. Accordingly, IT IS HEREBY ORDERED that: 1. Petitioner's March 16, 2010 motion for a certificate of appealability is granted; and 2. The Clerk of the Court is directed to process petitioner's appeal to the United States Court of Appeals for the Ninth Circuit.
Dated: April 11, 2010

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

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