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Preciado v. Runnels

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


July 29, 2008

THOMAS ANTONIO PRECIADO, PETITIONER,
v.
DAVID RUNNELS, WARDEN, ET AL., RESPONDENTS.

ORDER

Petitioner, a state prisoner proceeding pro se, has timely filed a notice of appeal of this court's June 23, 2008, denial of his application for a writ of habeas corpus. Before petitioner can appeal this decision, a certificate of appealability must issue. 28 U.S.C. § 2253(c); Fed. R. App. P. 22(b).

A certificate of appealability may issue under 28 U.S.C. § 2253 "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). The certificate of appealability must "indicate which specific issue or issues satisfy" the requirement. 28 U.S.C. § 2253(c)(3).

A certificate of appealability should be granted for any issue that petitioner can demonstrate is "'debatable among jurists of reason,'" could be resolved differently by a different court, or is "'adequate to deserve encouragement to proceed further.'" Jennings v. Woodford, 290 F.3d 1006, 1010 (9th Cir. 2002) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 (1983)).*fn1

Petitioner has made a substantial showing of the denial of a constitutional right in the following issues presented in the instant petition: 1) whether trial court denied petitioner his federal constitutional right to due process of law and the right to confrontation by refusing to order discovery of potential exculpatory evidence of malpractice that would prove to be independent cause of the victim's death; 2) whether the court denied counsel his constitutional right to cross-examine the treating physician; 3) the trial court denied petitioner his federal constitutional right to due process and protection against self-incrimination by allowing the prosecution to present petitioner's involuntary confession obtained unconstitutionally to the trial jury.

Accordingly, IT IS HEREBY ORDERED that a certificate of appealability is issued in the present action.


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