Mackey v. Hoffman et al

Filing 41

ORDER DENYING CERTIFICATE OF APPEALABILITY AND GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS 38 40 (Illston, Susan) (Filed on 11/13/2012)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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ANDREW MACKEY,

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United States District Court
For the Northern District of California

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No. C 07-4189 SI

Petitioner,
v.
THOMAS HOFFMAN and DAVID RUNNELS,

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Respondents.

ORDER DENYING CERTIFICATE OF
APPEALABILITY AND GRANTING
LEAVE TO PROCEED IN FORMA
PAUPERIS

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Petitioner has filed a notice of appeal and a motion for certificate of appealability pursuant to

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28 U.S.C. § 2253(c) and Federal Rule of Appellate Procedure 22(b). (Docket Nos. 37, 40). Petitioner

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argues that his trial counsel was ineffective in trial preparation or strategic choices, and that this Court

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erred in denying his petition for writ of habeas corpus. This Court found that trial counsel’s

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performance was within the objective standard of reasonableness, and that in any event petitioner did

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not show prejudice. Accordingly, this Court found that the state court’s rejection of petitioner’s claim

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for ineffective assistance of counsel was not contrary to or an unreasonable application of clearly

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established federal law as set out by the U.S. Supreme Court in Strickland v. Washington, 466 U.S. 668

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(1984).

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Because petitioner has not demonstrated that “jurists of reason would find it debatable whether

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the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find

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it debatable whether the district court was correct in its procedural ruling,” the request for a certificate

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of appealability is DENIED. Slack v. McDaniel, 529 U.S. 473 (2000). The Clerk shall forward this

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order to the court of appeals. See United States v. Asrar, 116 F.3d 1268, 1270 (9th Cir. 1997).

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Petitioner has filed a motion to proceed in forma pauperis on appeal. The Ninth Circuit has held

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that “if at least one issue or claim is found to be non-frivolous, leave to proceed in forma pauperis must

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be granted for the case as a whole.” Hooker v. American Airlines, 302 F.3d 1091, 1092 (9th Cir. 2002).

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The Court finds that at least one claim is non-frivolous. Therefore, plaintiff’s motion to proceed in

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forma pauperis is GRANTED.

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IT IS SO ORDERED.

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Dated: November 13, 2012
SUSAN ILLSTON
United States District Judge

United States District Court
For the Northern District of California

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