Freeman v. Evans, et al

Filing 38

ORDER signed by Senior Judge Lawrence K. Karlton on 1/8/2010 ORDERING that a certificate of appealability shall not issue in the present action. (Suttles, 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. M. S. Evans, Respondent. / Petitioner, a state prisoner proceeding pro se, filed a timely notice of appeal of this court's September 29, 2009 order denying his application for 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 "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, 1 ORDER IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA DORN ALLEN FREEMAN, Petitioner, No. CIV S-07-1898 LKK CHS P

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290 F.3d 1006, 1010 (9th Cir. 2002) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 (1983)).1 In this case, petitioner failed to make a substantial showing with respect to either of the claims presented. Accordingly, IT IS HEREBY ORDERED that a certificate of appealability shall not issue in the present action. DATED: January 8, 2010.

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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