IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
January 14, 2009
TIO DINERO SESSOMS, PETITIONER,
D. L. RUNNELS, WARDEN, ET AL., RESPONDENT.
The opinion of the court was delivered by: John A. Mendez United States District Judge
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 in the present action.