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Carrasco v. Kernan

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


September 25, 2008

RAYMOND LARRY CARRASCO, PETITIONER,
v.
SCOTT KERNAN, RESPONDENT.

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

ORDER

Petitioner, a state prisoner proceeding pro se, has timely filed a notice of appeal of this court's August 20, 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 his right to due process was violated by the admission of evidence of prior "bad acts;" (2) whether his right to due process was violated by jury instruction error; (3) whether his conviction violates due process because he was incompetent to stand trial; and (4) whether his right to due process was violated by the trial court's failure to make a sua sponte determination whether he was competent to stand trial.

Petitioner has also filed an application for an extension of time to request a certificate of appealability. In light of this order, petitioner's request for an extension of time will be denied as unnecessary.

Accordingly, IT IS HEREBY ORDERED that:

1. A certificate of appealability is issued in the present action; and

2. Petitioner's September 9, 2008 application for an extension of time is denied.


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