Jensen v. Hernandez

Filing 63

ORDER signed by Magistrate Judge Dale A. Drozd on 7/31/2012 ORDERING 62 Petitioner's 4/27/2012 request for a certificate of appealability is GRANTED; petitioner's 7/20/2012 motion for a certificate of appealability is GRANTED; and a certificate of appealability is ISSUED in the present action. (cc: USCA) (Reader, L)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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KEITH HUGH JENSEN,

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Petitioner,

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No. CIV S-09-0512 DAD P

vs.
ROBERT J. HERNANDEZ,
Respondent.

ORDER
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On April 27, 2012, petitioner, a state prisoner proceeding pro se, filed a timely

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notice of appeal of this court's March 30, 2012 order which conditionally granted petitioner’s

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application for a writ of habeas corpus with respect to his claims of Faretta error and that his

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appellate counsel rendered ineffective assistance in failing to raise that Faretta error on appeal.

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On that same date, and also on July 20, 2012, petitioner filed a request for a certificate of

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appealability. See 28 U.S.C. § 2253(c); Fed. R. App. P. 22(b). Therein, petitioner requests a

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certificate of appealability with respect to that portion of the court’s March 30, 2012 order

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directing that petitioner’s judgment of conviction be vacated only if respondent fails to either

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dismiss the enhancement allegations which were added by amendment after the Faretta

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advisement and resentence petitioner, or initiate proceedings to retry petitioner within ninety (90)

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days. Petitioner disagrees with that remedy, contending that his judgment of conviction should
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be overturned unconditionally.

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A certificate of appealability may issue under 28 U.S.C. § 2253 “only if the

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applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C.

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§ 2253(c)(2). The certificate of appealability must “indicate which specific issue or issues

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satisfy” the requirement. 28 U.S.C. § 2253(c)(3). A certificate of appealability should be

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granted for any issue that petitioner can demonstrate is “‘debatable among jurists of reason,’”

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could be resolved differently by a different court, or is “‘adequate to deserve encouragement to

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proceed further.’” Jennings v. Woodford, 290 F.3d 1006, 1010 (9th Cir. 2002) (quoting Barefoot

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v. Estelle, 463 U.S. 880, 893 (1983)).1

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Petitioner has made a substantial showing of the denial of a constitutional right in

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the following issue presented in the instant petition: whether the proper remedy for the

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constitutional violations that occurred in this case is that petitioner’s judgment of conviction be

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vacated only if respondent fails to either dismiss the enhancement allegations which were added

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by amendment after the Faretta advisement and resentence petitioner, or initiate proceedings to

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retry petitioner within ninety (90) days.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Petitioner’s April 27, 2012 request for a certificate of appealability is granted;

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2. Petitioner’s July 20, 2012 motion for a certificate of appealability is granted;

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and

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3. A certificate of appealability is issued in the present action.
DATED: July 31, 2012.

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DAD:8
jensen512.coa

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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, 290 F.3d at 1010.
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