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Stowers v. Evans

September 10, 2008

STEPHAN STOWERS, PETITIONER,
v.
MIKE EVANS, ET AL., RESPONDENTS.



The opinion of the court was delivered by: Morrison C. England, Jr. United States District Judge

ORDER

Petitioner, a state prisoner proceeding through counsel, has timely filed a notice of appeal of this court's August 7, 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: ineffective assistance of counsel, with respect to failure to request an accomplice instruction. All other adjudicated issues do not warrant a certificate of appealability.

Petitioner also seeks a certificate of appealability on the issue of whether AEDPA is constitutional. The court will not issue a certificate of appealability as to this issue as it was not directly raised in the petition.

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


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