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Sessoms v. Runnels

January 14, 2009

TIO DINERO SESSOMS, PETITIONER,
v.
D. L. RUNNELS, WARDEN, ET AL., RESPONDENT.



The opinion of the court was delivered by: John A. Mendez United States District Judge

ORDER

Petitioner is a state prisoner proceeding with appointed counsel. Petitioner has been granted, subsequent to this court's denial of a request for certificate of appealability on grounds of untimeliness, an extension of time and has been deemed to have filed a notice of appeal of timely. See Docket Entry # 56, # 59 and # 60. This matter has been referred to this court for reconsideration of petitioner's application as a timely filed notice of appeal to the October 24, 2008, denial of his petition for writ of habeas corpus, and on that basis, the court will reconsider the request for a certificate of appealability 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 petitioner received ineffective assistance of counsel by a failure of his trial counsel to investigate and present evidence that his constitutional rights were violated in a police interview; 2) whether petitioner's Miranda*fn2 rights were violated when he was interviewed by detectives.

Accordingly, IT IS HEREBY ORDERED that a certificate of appealability is issued ...


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