Cook v. Kernan et al
Filing
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ORDER RE CERTIFICATE OF APPEALABILITY re 58 USCA Order Signed by Judge Alsup on 11/28/2017. (whalc1, COURT STAFF) (Filed on 11/28/2017)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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WALTER JOSEPH COOK,III,
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For the Northern District of California
United States District Court
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Petitioner,
No. C 15-06343 WHA
v.
SCOTT KERNAN et al.,
ORDER RE CERTIFICATE OF
APPEALABILITY
Respondents.
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In his habeas petition, petitioner Walter Cook presented eight claims upon which he
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sought relief: (1) state misconduct, (2) Miranda and Fifth Amendment violations related to
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Cook’s taped confession, (3) ineffective assistance of counsel at the guilt phase of trial, (4)
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denial of the right to conflict-free representation, (5) incompetence to stand trial, (6) ineffective
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assistance of appellate counsel, (7) the failure to create a complete and accurate record, and (8)
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cumulative trial error. An October 10 order denied the petition, finding the seventh claim for
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failure to complete the record was procedurally barred, and denying the balance of the claims
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on the merits (Dkt. No. 54). That order, however, granted Cook a certificate of appealability.
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On November 3, Cook appealed. Our court of appeals has now remanded Cook’s
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petition for the limited purpose of issuing a modified certificate of appealability specifying
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which issues, in particular, are certified for appeal. Cook v. Kernan, No. 17-17257, Dkt. No. 5.
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A certificate of appealability may issue “only if the applicant has made a substantial
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showing of the denial of a constitutional right.” 28 U.S.C. 2253. “The petitioner must
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demonstrate that reasonable jurists would find the district court’s assessment of the
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constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). In
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cases where multiple trial errors are alleged to have resulted in deprivation of a constitutional
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right, the district court may grant a certificate of appealability even if no one issue standing
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alone would meet the standard set forth in Slack. Silva v. Woodford, 279 F.3d 825, 834 (9th
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Cir. 2002), as amended (Feb. 22, 2002).
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Whether reliance on Cook’s taped confession resulted in a prejudicial violation
of his constitutional rights;
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Whether state misconduct in the investigation and prosecution of Cook’s case
resulted in a prejudicial violation of his constitutional rights;
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Whether Cook was deprived of effective counsel during the guilt phase of his
trial; and,
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Whether cumulative trial error related to alleged Miranda and Fifth Amendment
violations, ineffective assistance counsel at the guilt phase of Cook’s trial, and
prosecutorial misconduct resulted in a deprivation of Cook’s constitutional
rights.
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For the Northern District of California
United States District Court
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Here, Cook has made a sufficient showing with respect to the following issues:
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Accordingly, a certificate of appealability is GRANTED as to the foregoing issues. A
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certificate of appealability is DENIED as to all other issues.
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IT IS SO ORDERED.
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Dated: November 28, 2017.
WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE
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