Bell v. Small

Filing 24

ORDER signed by Judge Morrison C. England, Jr on 12/7/2009 ORDERING that a certificate of appealability is issued in the present action.(Matson, R)

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 vs. LARRY SMALL, Warden, Respondent. / Petitioner, a state prisoner proceeding pro se, has timely filed a notice of appeal of this court's November 10, 2009 denial of his application for a writ of habeas corpus. Before petitioner can appeal this 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 "only 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). /// /// 1 ORDER ALLIE JAMES BELL, Petitioner, No. CIV S-09-0515 MCE CHS P IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

1 2 3 4 5 6 7 8 9 10 11 12 13 14

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, 290 F.3d 1006, 1010 (9th Cir. 2002) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 (1983)).1 Petitioner has made a substantial showing of the denial of a constitutional right in the following issues presented in the instant petition: 1. 2. 3. 4. Whether a pretrial identification lineup was impermissibly suggestive. Whether the trial court erred by excluding impeachment evidence. Whether the trial court erred by instructing the jury on consciousness of guilt. Whether his conviction was the result of cumulative error. Accordingly, IT IS HEREBY ORDERED that a certificate of appealability is issued in the present action.
Dated: December 7, 2009 ________________________________

15 16 17 18 19 20 21 22 23 24 25 26

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

1