Bui v. Hedgpeth

Filing 18

ORDER GRANTING IN PART CERTIFICATE OF APPEALABILITY 17 (Illston, Susan) (Filed on 7/22/2013)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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RYAN BUI,

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United States District Court
For the Northern District of California

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No. C 11-03167 SI
Petitioner,

ORDER GRANTING IN PART
CERTIFICATE OF APPEALABILITY

v.
ANTHONY HEDGPETH, Warden,
Respondent.
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On June 26, 2013, the Court denied petitioner’s habeas corpus petition, and entered judgment

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accordingly. Petitioner filed a notice of appeal and requested a certificate of appealability. See 28

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U.S.C. § 2253(c); Fed. R. App. P. 22(b).

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

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

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

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

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

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

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Here, the Court’s dismissal was based on a finding that: (1) the state courts did not unreasonably

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reject petitioner’s claim that the exclusion of his friends and family during voir dire violated his right

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to a public trial, and (2) the state courts did not unreasonably reject petitioner’s claim that excluding

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testimony of a witness violated his right to present a defense. Regarding the first claim, although the

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Supreme Court has held that defendants have a right to a public voir dire, the state courts found that the

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exclusion did not violate petitioner’s right because it was a de minimis violation. As the Court noted,

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the Supreme Court has not ruled on the applicability of the de minimis exception to the right to a public

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trial, and lower courts are divided on the issue. Thus, jurists of reason would find it debatable that the

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state court violated petitioner’s public trial rights. However, the Court does not find that reasonable

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jurists would differ regarding petitioner’s second claim that the witness testimony was improperly

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excluded.

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

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regarding his Sixth Amendment right to a public trial claim. The clerk shall forward to the court of

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appeals the case file with this order. See United States v. Asrar, 116 F.3d 1268, 1270 (9th Cir. 1997).

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United States District Court
For the Northern District of California

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IT IS SO ORDERED.

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Dated: July 22, 2013
SUSAN ILLSTON
United States District Judge

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