Dominguez v. Felker

Filing 32

ORDER by Judge Jeremy Fogel granting in part and denying in part 29 Motion for Certificate of Appealability (jflc1, COURT STAFF) (Filed on 9/1/2009)

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**E-Filed 9/1/2009**

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION

FERNANDO DOMINGUEZ, Petitioner, v. TOM FELKER,

Case Number C 07-2241 JF ORDER1 GRANTING IN PART AND DENYING IN PART REQUEST FOR A CERTIFICATE OF APPEALABILITY [re: dock. no. 29]

Respondent.

On August 18, 2009, this Court denied the instant petition for writ of habeas corpus. Petitioner has filed a notice of appeal from this Court's judgment and a request for a certificate of appealability with respect to six issues. See Docket Entry No. 29. A petitioner may not appeal a final order in a federal habeas corpus proceeding without first obtaining a certificate of appealability. See 28 U.S.C. § 2253(c); Fed. R. App. P. 22(b). "Where a district court has rejected the constitutional claims on the merits, the showing required to satisfy § 2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Slack v. McDaniel, 529 U.S. 473, 484 (2000). The Court denied the instant habeas petition after careful consideration of This disposition is not designated for publication in the official reports.

C a s e No. C 07-2241 JF O R D E R GRANTING IN PART AND DENYING IN PART REQUEST FOR A CERTIFICATE OF APPEALABILITY ( JF L C 1 )

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the merits, but finds that Petitioner has demonstrated that reasonable jurists may differ with respect to issues one through three as set forth in his request. Accordingly, the request for a certificate of appealability is GRANTED IN PART with respect to the following issues: 1. The trial court erred by failing to instruct the jury with CALJIC No. 8.27. 2. The California Supreme Court violated the rule of Bouie v. City of Columbia, 378 U.S. 347 (1964) by holding that the trial court had no duty to instruct the jury that petitioner could not be found liable for Mr. Martinez's act of murder unless Mr. Martinez was an aider and abettor in the rape. 3. The California Supreme Court violated the rule of Bouie by holding that the kidnapping conviction could be upheld even if the victim was asported less than 90 feet. The request otherwise is DENIED. The clerk shall forward to the Ninth Circuit Court of Appeals

11 the case file with this order. See Fed. R. App. P. 22(b). 12 IT IS SO ORDERED. 13 14 15 16 DATED: September 1, 2009 17 18 19 20 21 22 23 24 25 26 27 28 2
C ase No. C 07-2241 JF O R D E R GRANTING IN PART AND DENYING IN PART REQUEST FOR A CERTIFICATE OF APPEALABILITY ( JF L C 1 )

__________________________________ JEREMY FOGEL United States District Judge

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C ase No. C 07-2241 JF O R D E R GRANTING IN PART AND DENYING IN PART REQUEST FOR A CERTIFICATE OF APPEALABILITY ( JF L C 1 )

Copies of Order served on: [e-mail]

John H. Deist [e-mail], [e-mail], [e-mail] Peggy S. Ruffra [e-mail], [e-mail]