Pakes v. Trimble

Filing 20

Certificate of Appealability. Signed by Judge Charles R. Breyer on 8/26/2013. (crblc2, COURT STAFF) (Filed on 8/26/2013)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

United States District Court
For the Northern District of California

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No. CV 11-05284 CRB

MILAN PAKES,

CERTIFICATE OF APPEALABILITY

Petitioner,
v.
P.D. BRAZELTON,
Respondent.

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Now before the Court is Pake’s request for an issuance of a certificate of appealability

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(“COA”). A judge shall grant a COA “if the applicant has made a substantial showing of the

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denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “Where a district court has rejected

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the constitutional claims on the merits, the showing required to satisfy § 2253(c) is

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straightforward: the petitioner must demonstrate that reasonable jurists would find the district

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court’s assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529

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U.S. 473, 484 (2000). Indeed, “a claim can be debatable even though every jurist of reason

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might agree, after the COA has been granted and the case has received full consideration,

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that petitioner will not prevail.” Miller-El v. Cockrell, 537 U.S. 322, 338 (2003).

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Here, the Court concludes that reasonable jurists could debate two of the seven issues
for which Pake seeks a COA. A COA is granted as to the following issues:

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(1) Was Pake deprived of the effective assistance of counsel under the Sixth and Fourteenth

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Amendments when his trial attorney agreed to the stipulation that he reasonably believed that

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he would be sent to prison if he was apprehended by the police?

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(2) Was Pake deprived of a fair trial under the Fifth, Sixth and Fourteenth Amendments due

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to the cumulative prejudice from the several errors that occurred at this trial?

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The Court GRANTS a certificate of appealability as to those two claims.

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IT IS SO ORDERED.

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United States District Court
For the Northern District of California

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CHARLES R. BREYER
UNITED STATES DISTRICT JUDGE

Dated: August 26, 2013

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