Cook v. Kernan et al

Filing 59

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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1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE NORTHERN DISTRICT OF CALIFORNIA 8 9 WALTER JOSEPH COOK,III, 11 For the Northern District of California United States District Court 10 12 13 14 15 Petitioner, No. C 15-06343 WHA v. SCOTT KERNAN et al., ORDER RE CERTIFICATE OF APPEALABILITY Respondents. / 16 In his habeas petition, petitioner Walter Cook presented eight claims upon which he 17 sought relief: (1) state misconduct, (2) Miranda and Fifth Amendment violations related to 18 Cook’s taped confession, (3) ineffective assistance of counsel at the guilt phase of trial, (4) 19 denial of the right to conflict-free representation, (5) incompetence to stand trial, (6) ineffective 20 assistance of appellate counsel, (7) the failure to create a complete and accurate record, and (8) 21 cumulative trial error. An October 10 order denied the petition, finding the seventh claim for 22 failure to complete the record was procedurally barred, and denying the balance of the claims 23 on the merits (Dkt. No. 54). That order, however, granted Cook a certificate of appealability. 24 On November 3, Cook appealed. Our court of appeals has now remanded Cook’s 25 petition for the limited purpose of issuing a modified certificate of appealability specifying 26 which issues, in particular, are certified for appeal. Cook v. Kernan, No. 17-17257, Dkt. No. 5. 27 28 1 A certificate of appealability may issue “only if the applicant has made a substantial 2 showing of the denial of a constitutional right.” 28 U.S.C. 2253. “The petitioner must 3 demonstrate that reasonable jurists would find the district court’s assessment of the 4 constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). In 5 cases where multiple trial errors are alleged to have resulted in deprivation of a constitutional 6 right, the district court may grant a certificate of appealability even if no one issue standing 7 alone would meet the standard set forth in Slack. Silva v. Woodford, 279 F.3d 825, 834 (9th 8 Cir. 2002), as amended (Feb. 22, 2002). 9 1. Whether reliance on Cook’s taped confession resulted in a prejudicial violation of his constitutional rights; 2. Whether state misconduct in the investigation and prosecution of Cook’s case resulted in a prejudicial violation of his constitutional rights; 3. Whether Cook was deprived of effective counsel during the guilt phase of his trial; and, 4. 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. 11 For the Northern District of California United States District Court 10 Here, Cook has made a sufficient showing with respect to the following issues: 12 13 14 15 16 17 Accordingly, a certificate of appealability is GRANTED as to the foregoing issues. A 18 certificate of appealability is DENIED as to all other issues. 19 20 IT IS SO ORDERED. 21 22 Dated: November 28, 2017. WILLIAM ALSUP UNITED STATES DISTRICT JUDGE 23 24 25 26 27 28 2

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