Knost v. Warsholl

Filing 21

CERTIFICATE OF APPEALABILITY signed by Judge Morrison C. England, Jr. on 04/28/10 ORDERING that a certificate of appealability shall ISSUE solely with respect to petitioner's claim that he received ineffective assistance of counsel at trial re 17 Notice of Appeal. (Benson, A.)

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 / Petitioner, a state prisoner proceeding through counsel, filed a timely notice of appeal of this court's order denying his application for writ of habeas corpus. Before petitioner can appeal this court's 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 vs. Joseph S. WARSHOLL, II, Respondent. ORDER IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA PATRICK MICHAEL KNOST, Petitioner, No. CIV S-08-2564 MCE CHS

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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 alleged that (1) insufficient evidence supported his conviction; and (2) he received ineffective assistance of counsel at trial. Petitioner has failed to make a substantial showing of the denial of a constitutional right with respect to his insufficiency of the evidence claim. On the other hand, petitioner has demonstrated that his ineffective assistance of counsel claim is debatable among jurists of reason and could be resolved differently by a different court. Accordingly, a certificate of appealability shall issue solely with respect to petitioner's claim that he received ineffective assistance of counsel at trial. IT IS SO ORDERED. Dated: April 28, 2010 ________________________________ MORRISON C. ENGLAND, JR. UNITED STATES DISTRICT JUDGE

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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