Brown v. Horell et al

Filing 23

ORDER signed by Senior Judge Lawrence K. Karlton on 8/28/09 ORDERING that a certificate of appealability shall issue in the present action. (Engbretson, K.)

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 Petitioner, a state prisoner proceeding pro se, has filed a notice of appeal of this 17 court's May 19, 2009 order denying his application for writ of habeas corpus. Before petitioner 18 can appeal this decision, a certificate of appealability must issue. 28 U.S.C. 2253(c); Fed. R. 19 App. P. 22(b). 20 A certificate of appealability may issue under 28 U.S.C. 2253 "if the applicant 21 has made a substantial showing of the denial of a constitutional right." 28 U.S.C. 2253(c)(2). 22 The certificate of appealability must "indicate which specific issue or issues satisfy" the 23 requirement. 28 U.S.C. 2253(c)(3). 24 A certificate of appealability should be granted for any issue that petitioner can 25 demonstrate is "`debatable among jurists of reason,'" could be resolved differently by a different 26 1 vs. R. HORELL, et. al., Respondents. / ORDER IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA LADELL DEANGELO BROWN, Petitioner, No. CIV S-07-1994 LKK CHS P 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 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 in his petition that (1) his coerced and involuntary confession was admitted into evidence at trial in violation of his constitutional rights; and (2) he was prevented from presenting a complete defense in violation of the Sixth Amendment when the trial judge excluded proffered expert testimony. Accordingly, IT IS HEREBY ORDERED that a certificate of appealability shall issue in the present action. DATED: August 28, 2009. 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 1

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