Scott v. Krammer et al

Filing 23

ORDER signed by Senior Judge Lawrence K. Karlton on 5/6/2011 ORDERING that the Court ISSUES a COA only as to the first two issues. It is DENIED as to the remaining issue. (Zignago, K.)

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1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 MICHAEL R. SCOTT, 11 12 13 14 15 16 Petitioner, No. CIV S-07-cv-2729 LKK JFM (HC) vs. M.C. KRAMMER, Warden, Respondent. ORDER / Petitioner, a federal prisoner proceeding pro se, has timely filed a notice of appeal 17 of this court’s July 27, 2010 dismissal of petitioner’s petition for writ of habeas corpus. 18 In the petition, petitioner sought habeas relief on the grounds that (1) the 19 prosecutor’s peremptory strikes of African-Americans from the jury panel were based on race in 20 violation of Batson v. Kentucky, 476 U.S. 79 (1986); (2) the prosecutor’s peremptory strikes of 21 the African-Americans from the jury panel violated those jurors’ equal protection rights, as 22 protected by the Fourteenth Amendment; and (3) the trial court’s failure to give a jury instruction 23 on the defense of unconsciousness violated petitioner’s due process rights and right to a fair trial. 24 A petitioner may not appeal a final order in a federal habeas corpus proceeding 25 without first obtaining a certificate of appealability (formerly known as a certificate of probable 26 cause to appeal). See 28 U.S.C. § 2253(c); Fed. R. App. P. 22(b). A judge shall grant a 1 1 certificate of appealability “only if the applicant has made a substantial showing of the denial of a 2 constitutional right.” 28 U.S.C. § 2253(c)(2). The certificate must indicate which issues satisfy 3 this standard. See id. § 2253(c)(3). “Where a district court has rejected the constitutional claims 4 on the merits, the showing required to satisfy § 2253(c) is straightforward: the petitioner must 5 demonstrate that reasonable jurists would find the district court's assessment of the constitutional 6 claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473 (2000). If the certificate is 7 granted, the court must specify the issue or is sues it has found to satisfy the standard for granting 8 a COA. 28 U.S.C. § 2253(c)(3) 9 The court concludes that reasonable jurists might find the result on petitioner’s 10 first and second issues to be debatable. Thus, the court issues a certificate of appealability only as 11 to the first two issues. It is denied as to the remaining issue for the reasons set out in the 12 magistrate judge’s May 7, 2010 findings and recommendations. 13 14 IT IS SO ORDERED. DATED: May 6, 2011. 15 16 17 18 19 20 21 22 23 24 25 26 2

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