Parham v. Mendoza-Powers, et al

Filing 21

ORDER signed by Judge Garland E. Burrell, Jr on 02/09/09 GRANTING a Certificate of Appealability is issued in the present action. (Streeter, J)

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. KATHY MENDOZA-POWERS, Respondents. / Petitioner, a state prisoner proceeding pro se, has timely filed a notice of appeal of this court's December 9, 2008, 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 1 ORDER RAYMOND THOMAS PARHAM, Petitioner, 2:06-cv-2624-GEB-GGH-P IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

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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 issues presented in the instant petition: 1) whether the trial court erred in not sua sponte instructing on a lesser offense; 2) whether there was insufficient evidence; 3) whether there was a Cunningham violation, i.e., sentence given fro the upper term without the jury having found aggravating circumstances. 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

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