Felton v. Marshall et al

Filing 19

ORDER granting in part and denying in part 18 Motion for Certificate of Appealability. The court grants a certificate of appealability with respect to the sufficiency of evidence claim (Ground One) and denies the motion with respect to the judicial bias and ineffective assistance of counsel claims (Grounds Two and Three). Signed by Judge Jeffrey T. Miller on 10/25/2010. (Order electronically transmitted to US Court of Appeals. All non-registered users served via U.S. Mail Service.) (akr)

Felton v. Marshall et al

Doc. 19

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 KELVIN FELTON vs. Petitioner, CASE NO. 09cv0732 JM(POR) ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR CERTIFICATE OF APPEALABILITY

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

JOHN MARSHALL, Warden; EDMUND G. BROWN, JR., Attorney General of the State of California, Respondent.

Petitioner moves for the issuance of a certificate of appealability to appeal the denial of his petition for habeas corpus brought pursuant to 28 U.S.C. §2254. The court may issue a certificate of appealability "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. §2253(b)(3). As noted in Hayward v. Marshall, 603 F.3d 546, 553 (9th Cir. 2010): The standard for a certificate of appealability is lenient. [A petitioner] need only `sho[w] that reasonable jurists could debate' the district court's resolution or that the issues are `adequate to deserve encouragement to proceed further.' This showing requires `something more than the absence of frivolity,' but something less than a merits determination (which we lack jurisdiction to make, absent a certificate of appealability). The court grants the certificate of appealability with respect to the conviction for making a criminal threat against Officer Ashton (Ground One). While the sufficiency of evidence challenge to this conviction presents a high hurdle for Petitioner to overcome, in light of the lenient standard adopted by the Ninth Circuit, the court concludes that reasonable jurists "could debate" whether there

-1-

09cv0732

Dockets.Justia.com

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

is sufficient evidence to support this conviction. With respect to Petitioner's other two claims, the court concludes that he fails, even under a lenient standard, to establish the denial of constitutional rights. See 28 U.S.C. §2253(b). In sum, the court grants a certificate of appealability with respect to the sufficiency of evidence claim (Ground One) and denies the motion with respect to the judicial bias and ineffective assistance of counsel claims (Grounds Two and Three). IT IS SO ORDERED. DATED: October 25, 2010 Hon. Jeffrey T. Miller United States District Judge
cc: All parties

-2-

09cv0732