Coleman v. Sisto

Filing 42

ORDER signed by Magistrate Judge Dale A. Drozd on 5/22/2013 GRANTING petitioner's 41 motion for certificate of appealability on his claim that he received ineffective assistance of counsel. (Yin, 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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WILLIE B. COLEMAN, III

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Petitioner,
vs.
GARY SWARTHOUT
Respondent.

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No. 2:09-cv-0020 DAD P

ORDER
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Petitioner is a state prisoner proceeding through counsel with an application for

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writ of habeas corpus under 28 U.S.C. § 2254. On May 20, 2013, the court entered judgment

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against the petitioner, pursuant to its previous orders denying all claims for habeas relief. (See

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Judgment (Docket No. 40); Orders of December 3, 2012, and May 17, 2013 (Docket Nos. 28 and

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39).) Petitioner has now moved for a certificate of appealability pursuant to 28 U.S.C. §

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2253(c)(1)(A), on the issue of whether his trial lawyer rendered ineffective assistance of counsel

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when he told the jury in his opening statement that they would hear from an alibi witness and

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then did not call that witness to testify.

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To qualify for a certificate of appealability under § 2253(c), “a petitioner must
show that reasonable jurists could debate whether ... the petition should have been resolved in a
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different manner[.]” Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (internal quotation marks

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and citations omitted). The court finds that this petitioner’s claim for ineffective assistance of

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counsel meets that standard. Therefore the motion will be granted.

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Accordingly, IT IS HEREBY ORDERED that the motion for a certificate of

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appealability on the petitioner’s claim that he received ineffective assistance of counsel (Docket

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No. 41) is granted.

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DATED: May 22, 2013.

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hm
cole0020.coa

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