Orthel v. Yates

Filing 41

ORDER GRANTING CERTIFICATE OF APPEALABILITY (Illston, Susan) (Filed on 10/16/2012)

1
2
3
4
5

IN THE UNITED STATES DISTRICT COURT

6

FOR THE NORTHERN DISTRICT OF CALIFORNIA

7
8

KLEE CHRISTOPHER ORTHEL,

9
United States District Court
For the Northern District of California

10
11

No. C 10-03612 SI

Petitioner,

ORDER GRANTING CERTIFICATE OF
APPEALABILITY

v.
JAMES A. YATES, warden,

12

Respondent.

/

13
14

On August 17, 2012, the Court dismissed petitioner’s habeas corpus petition as time-barred

15

because he was ineligible for equitable tolling, and entered judgment accordingly. Petitioner filed a

16

notice of appeal and requested a certificate of appealability. See 28 U.S.C. § 2253(c); Fed. R. App. P.

17

22(b).

18

A certificate of appealability will issue where the petitioner has demonstrated that “jurists of

19

reason would find it debatable whether the petition states a valid claim of the denial of a constitutional

20

right and that jurists of reason would find it debatable whether the district court was correct in its

21

procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). When granting a certificate of

22

appealability, the court must “indicate [for] which specific issue or issues” the petitioner has “made a

23

substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2), (3).

24

Here the Court’s dismissal was based on a finding that “[p]etitioner’s medical records establish

25

that he was a sufficiently competent and capable individual to manage his own affairs...” such that he

26

could have filed a timely habeas petition. Dkt. 33 at 6. However, petitioner’s medical records were vast

27

and complex and there was no evidentiary hearing or expert testimony to evaluate petitioner’s claims.

28

Thus, jurists of reason would find it debatable that petitioner was not entitled to equitable tolling on the

1

basis of his diagnosed mental illnesses. Additionally, petitioner has raised a serious constitutional issue

2

as to the jury instruction issued during the sanity phase of his trial.

3

Accordingly, the Court hereby GRANTS petitioner’s application for a certificate of

4

appealability. The clerk shall forward to the court of appeals the case file with this order. See United

5

States v. Asrar, 116 F.3d 1268, 1270 (9th Cir. 1997).

6
IT IS SO ORDERED.
7
Dated: October 16, 2012
8

SUSAN ILLSTON
United States District Judge

9
United States District Court
For the Northern District of California

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
2