Tyler v. Adams et al
ORDER signed by Senior Circuit Judge J. Clifford Wallace on 4/16/10 DENYING 24 Motion for Certificate of Appealability. (Owen, K)
1 2 3 4 5 6 7 8 9 10 1 1 B R E N T KENNETH TYLER, 12 vs . 13 D A R R A L G. ADAMS, 14 R e s p o nd e nt. 15 16 17 T yle r, a state prisoner, filed a petition for writ of habeas corpus pursuant to 18 2 8 U.S.C. § 2254, challenging his sentence of 25 years to life, imposed pursuant to 19 his guilty plea on one count of penetration with a foreign object, with enhancements 20 a d mitte d for committing that crime during a burglary and for involving binding the 21 vic tim. On March 23, 2010, I ordered that the petition be denied. Tyler has now 22 re q ue s te d a Certificate of Appealability (COA) as to his claims (1) that his sentence 23 w a s disproportionate to his crime in violation of the Eighth Amendment to the 24 U nite d States Constitution; (2) that he did not knowingly and intelligently waive his 25 right to appeal the disproportionality of his sentence; and (3) alternatively, that if his 26
U N IT E D STATES DISTRICT COURT FO R THE EASTERN DISTRICT OF CALIFORNIA
No. 2:07-cv-00367 JCW O R D ER
P e titio ne r,
1 w a ive r was valid, he received ineffective assistance of counsel because his counsel 2 c o uld have had no rational, tactical reason for allowing Tyler to waive his right to 3 a p p e a l his sentence. 4 " A COA may issue `only if the applicant has made a substantial showing of
5 the denial of a constitutional right.'" Rhoades v. Henry, 598 F.3d 511, *5 (9th Cir. 6 2 0 1 0 ), citing 28 U.S.C. § 2253(c)(2). A petitioner must establish that "reasonable 7 juris ts could debate whether . . . the petition should have been resolved in a different 8 ma nne r or that the issues presented were `adequate to deserve encouragement to 9 p ro c e e d further.'" Id., citing Slack v. McDaniel, 529 U.S. 473, 484 (2000). 10 Fo r the reasons stated in my order denying Tyler's petition for a writ of
1 1 ha b e a s corpus, Tyler has failed to establish that jurists of reason could debate 1 2 w he the r the petition should have been resolved in a different manner, or that the 1 3 is s ue s presented deserve encouragement to proceed further. 14 It is therefore ordered that I decline to issue a Certificate of Appealability.
1 5 Any further request for a Certificate of Appealability must be addressed to the Court 1 6 o f Appeals. See Fed. R. App. P. 22(b); Ninth Cir. R. 22-1. 17 1 8 D A T E D : April 16, 2010 19 20 21 22 23 24 25 26
/s/ J. Clifford Wallace J. Clifford Wallace United States Circuit Judge
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