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Gibson v. Shepard

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


November 20, 2006

RENALDO E. GIBSON, PETITIONER,
v.
MARK SHEPARD, RESPONDENT.

The opinion of the court was delivered by: Hayes, Judge

ORDER GRANTING CERTIFICATE OF APPEALABILITY

On August 12, 2005, Petitioner Renaldo E. Gibson (Gibson) filed a petition for writ of habeas corpus. (Doc. # 1). On March 6, 2006, Magistrate Judge Major issued a Report and Recommendation recommending that the district court deny the petition. (Doc. # 25). On October 2, 2006, this Court adopted Magistrate Judge Major's Report and Recommendation and denied Gibson's petition for writ of habeas corpus. (Doc. # 31). On November 1, 2006, Gibson filed a notice of appeal and a motion for certificate of appealability. (Docs. # 33, 34).

A certificate of appealability may issue "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). To this end, it must appear that reasonable jurists could find the district court's assessment of the petitioner's constitutional claims debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 484-85 (2000). "Upon the filing of a notice of appeal and a request for a certificate of appealability, the district court shall indicate which specific issue or issues satisfy the standard for issuing a certificate, or state its reasons why a certificate should not be granted." United States v. Asrar, 116 F.3d 1268, 1270 (9th Cir. 1997), citing 28 U.S.C. § 2253(c)(3).

Although the Court denied Gibson's habeas petition on the merits, the Court finds that Gibson raised colorable constitutional arguments with respect to his claim for ineffective assistance of counsel under the Sixth Amendment.

[T]he issuance of a COA is not precluded where the petitioner cannot meet the standard to obtain a writ of habeas corpus. . . .This general principle reflects the fact that the COA requirement constitutes a gatekeeping mechanism that prevents [an appellate court] from devoting judicial resources on frivolous issues while at the same time affording habeas petitioners an opportunity to persuade [the appellate court] . . . of the potential merit of issues that may appear, at first glance, to lack merit.

Lambright v. Stewart, 220 F.3d 1022, 1025 (9th Cir. 2000) (internal citation omitted); see also Jefferson v. Welborn, 222 F.3d 286, 289 (7th Cir. 2000) (a COA should issue unless the claims are "utterly without merit"). The Court concludes that Gibson's claims are not frivolous and make a substantial showing of the denial of a constitutional right. Accordingly, the Court GRANTS Gibson's motion for a certificate of appealability.

IT IS SO ORDERED.

WILLIAM Q. HAYES United States District Judge

20061120

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