Smith v. Small et al

Filing 16

ORDER granting Certificate of Appealability. In light of the above standards, the Court finds that a certificate of appealability is warranted in this case. Small's 13 motion is therefore GRANTED. Signed by Judge Larry Alan Burns on 12/13/2011. (Order electronically transmitted to US Court of Appeals). (akr)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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CHRISTOPHER DALE SMITH,

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CASE NO. 10-CV-2429 LAB (CAB)
Petitioner,

ORDER GRANTING
CERTIFICATE OF
APPEALABILITY

vs.
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LARRY SMALL,
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Respondent.
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The Court dismissed Small’s habeas petition with prejudice on November 10, 2011,

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but without granting or denying a certificate of appealability. Small filed a notice of appeal

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on December 6, 2011 and a motion for a certificate of appealability on December 8, 2011.

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A COA is authorized “if the applicant has made a substantial showing of the denial

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of a constitutional right.” 28 U.S.C. § 2253(c)(2). “A petitioner satisfies this standard by

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demonstrating that jurists of reason could disagree with the district court’s resolution of his

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constitutional claims or that jurists could conclude the issues presented are adequate to

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deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003).

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A petitioner doesn’t have to show that he should prevail on the merits. “He has already

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failed in that endeavor.” Lambright v. Stewart, 220 F.3d 1022, 1025 (9th Cir. 2000) (citing

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Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983)). At the same time, the Court shouldn’t

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issue a COA as a matter of course. A petitioner “must prove ‘something more than the / /

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//

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absence of frivolity’ or the existence of mere ‘good faith’ on his or her part.” Miller-El, 537

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U.S. at 337–38 (citing Barefoot, 463 U.S. at 893).

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In light of the above standards, the Court finds that a certificate of appealability is
warranted in this case. Small’s motion is therefore GRANTED.
IT IS SO ORDERED.
DATED: December 13, 2011

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HONORABLE LARRY ALAN BURNS
United States District Judge

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