Mizner v. Grounds

Filing 34

Order by Hon. Charles R. Breyer granting in part and denying in part 33 Motion to Amend/Correct ;.(crblc2, COURT STAFF) (Filed on 10/31/2013)

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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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ANTHONY ROBERT MIZNER,

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Petitioner,

No. CV 12-0288 CRB
CERTIFICATE OF APPEALABILITY

v.
RANDY GROUNDS,
Respondent.

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Now before the Court is Anthony Robert Mizner’s request for an issuance of a

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

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

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a district court has rejected the constitutional claims on the merits, the showing required to

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satisfy § 2253(c) is straightforward: the petitioner must demonstrate that reasonable jurists

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would find the district court’s assessment of the constitutional claims debatable or wrong.”

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Slack v. McDaniel, 529 U.S. 473, 484 (2000). Indeed, “a claim can be debatable even

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though every jurist of reason might agree, after the COA has been granted and the case has

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received full consideration, that petitioner will not prevail.” Miller-El v. Cockrell, 537 U.S.

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322, 338 (2003).

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

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Was Mizner deprived of the effective assistance of counsel under the Sixth and Fourteenth

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Amendments when his trial attorney failed to request the sentencing court exercise its

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discretion to sentence his possession of methamphetamine as a misdemeanor, rather than as a

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felony?

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The Court GRANTS a certificate of appealability as to this claim.
IT IS SO ORDERED.

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CHARLES R. BREYER
UNITED STATES DISTRICT JUDGE

Dated: October 31, 2013

United States District Court
For the Northern District of California

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