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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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MICHAEL R. SCOTT,

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Petitioner,

No. CIV S-07-cv-2729 LKK JFM (HC)

vs.
M.C. KRAMMER, Warden,
Respondent.

ORDER
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Petitioner, a federal prisoner proceeding pro se, has timely filed a notice of appeal

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of this court’s July 27, 2010 dismissal of petitioner’s petition for writ of habeas corpus.

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In the petition, petitioner sought habeas relief on the grounds that (1) the

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prosecutor’s peremptory strikes of African-Americans from the jury panel were based on race in

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violation of Batson v. Kentucky, 476 U.S. 79 (1986); (2) the prosecutor’s peremptory strikes of

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the African-Americans from the jury panel violated those jurors’ equal protection rights, as

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protected by the Fourteenth Amendment; and (3) the trial court’s failure to give a jury instruction

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on the defense of unconsciousness violated petitioner’s due process rights and right to a fair trial.

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A petitioner may not appeal a final order in a federal habeas corpus proceeding

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without first obtaining a certificate of appealability (formerly known as a certificate of probable

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cause to appeal). See 28 U.S.C. § 2253(c); Fed. R. App. P. 22(b). A judge shall grant a
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certificate of appealability “only if the applicant has made a substantial showing of the denial of a

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constitutional right.” 28 U.S.C. § 2253(c)(2). The certificate must indicate which issues satisfy

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this standard. See id. § 2253(c)(3). “Where a district court has rejected the constitutional claims

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on the merits, the showing required to satisfy § 2253(c) is straightforward: the petitioner must

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demonstrate that reasonable jurists would find the district court's assessment of the constitutional

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claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473 (2000). If the certificate is

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granted, the court must specify the issue or is sues it has found to satisfy the standard for granting

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a COA. 28 U.S.C. § 2253(c)(3)

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The court concludes that reasonable jurists might find the result on petitioner’s

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first and second issues to be debatable. Thus, the court issues a certificate of appealability only as

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to the first two issues. It is denied as to the remaining issue for the reasons set out in the

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magistrate judge’s May 7, 2010 findings and recommendations.

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IT IS SO ORDERED.
DATED: May 6, 2011.

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