Oubichon v. California Dept of Corrections and Rehabilitation et al

Filing 50

ORDER signed by Judge Garland E. Burrell, Jr on 2/17/09. Petitioner is GRANTED a CERTIFICATE OF APPEALABILITY. (Mena-Sanchez, L)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 Respondent. 16 / 17 18 Petitioner, a state prisoner proceeding pro se, has filed a timely notice of appeal of ORDER vs. CALIFORNIA DEPT. OF CORRECTIONS AND REHABILITATION, et al., RAYMOND L. OUBICHON, Petitioner, 2:07-cv-838-GEB-CHS-P IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

19 this court's January 21, 2009 order denying his application for writ of habeas corpus. Before 20 petitioner can appeal this decision, a certificate of appealability must issue. 28 U.S.C. § 2253(c); 21 Fed. R. App. P. 22(b). 22 A certificate of appealability may issue under 28 U.S.C. § 2253 "if the applicant

23 has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). 24 The certificate of appealability must "indicate which specific issue or issues satisfy" the 25 requirement. 28 U.S.C. § 2253(c)(3). 26 /// 1

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A certificate of appealability should be granted for any issue that petitioner can

2 demonstrate is "`debatable among jurists of reason,'" could be resolved differently by a different 3 court, or is "`adequate to deserve encouragement to proceed further.'" Jennings v. Woodford, 4 290 F.3d 1006, 1010 (9th Cir. 2002) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 (1983)).1 5 Petitioner has made a substantial showing in his petition that (1) the trial court

6 erred when it modified petitioner's conviction to attempted criminal threat without resubmitting 7 the matter to a jury; (2) the trial court gave a jury instruction which undermined the reasonable 8 doubt burden of proof; (3) the readback of testimony to jurors outside the presence of and without 9 notice to petitioner or his attorney violated the Sixth Amendment; (4) there was insufficient 10 evidence to support petitioner's conviction and insufficient evidence of a prior conviction used as 11 an enhancement; (5) the sentence imposed constitutes cruel and unusual punishment; (6) both trial 12 and appellate counsel rendered ineffective assistance of counsel; and (7) the trial court erred when 13 it denied petitioner's motion to strike a "strike." 14 15 issues. 16 Dated: February 17, 2009 17 18 19 20 21 22 23 24 25 26 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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Accordingly, Petitioner is granted a certificate of appealability on the above stated

GARLAND E. BURRELL, JR. United States District Judge