Tarango v. McDaniel et al

Filing 37

ORDER granting 35 Motion for Certificate of Appealability as to Ground One of 17 Amended Petition re 36 Notice of Appeal. (E-mail notice (NEF) sent to the US Court of Appeals, Ninth Circuit.) Signed by Chief Judge Robert C. Jones on 10/16/13. (Copies have been distributed pursuant to the NEF - JC)

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UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

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MANUEL TARANGO, JR.,

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Petitioner,

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vs.

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E.K. McDANIEL,

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Respondent.

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Case No. 3:10-CV-00146-RCJ-VPC
ORDER

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This is an action on a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 brought

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by Manuel Tarango, Jr. with the assistance of counsel. Before the Court is the petitioner’s motion for

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certificate of appealability (ECF No. 35).

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In order to proceed with an appeal from this court, petitioner must receive a certificate of

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appealability. 28 U.S.C. § 2253(c)(1). Generally, a petitioner must make “a substantial showing of the

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denial of a constitutional right” to warrant a certificate of appealability. Id. The Supreme Court has held

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that a petitioner “must demonstrate that reasonable jurists would find the district court’s assessment of

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the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).

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The Supreme Court further illuminated the standard for issuance of a certificate of appealability
in Miller-El v. Cockrell, 537 U.S. 322 (2003). The Court stated in that case:
We do not require petitioner to prove, before the issuance of a COA, that
some jurists would grant the petition for habeas corpus. Indeed, a claim
can be debatable even though every jurist of reason might agree, after the
COA has been granted and the case has received full consideration, that
petitioner will not prevail. As we stated in Slack, “[w]here a district court
has rejected the constitutional claims on the merits, the showing required
to satisfy § 2253(c) is straightforward: The petitioner must demonstrate

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that reasonable jurists would find the district court’s assessment of the
constitutional claims debatable or wrong.”

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Id. at 1040 (quoting Slack, 529 U.S. at 484).
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The Court has considered the issues raised by petitioner, with respect to whether they satisfy the
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standard for issuance of a certificate of appeal, and the Court determines that Ground One of the
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Amended Petition related to jury tampering may be debatable among reasonable jurists or warrants
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further review.
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IT IS THEREFORE ORDERED that petitioner’s motion for certificate of appealability (ECF
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No. 35) is GRANTED as to Ground One of the Amended Petition.
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Dated this 16th day of October, 2013.

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_______________________________________
UNITED STATES CHIEF DISTRICT JUDGE

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