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Stowers v. Evans

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


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 ineffective assistance of counsel claims.


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