The opinion of the court was delivered by: Garland E. Burrell, Jr. United States District Judge
Petitioner, a state prisoner proceeding through counsel, has timely filed a notice of appeal of this court's November 18, 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: whether the trial court erroneously and prejudicially interfered with the function of the jury in violation of his right to trial by an unbiased, impartial jury.
On December 24, 2008, proceeding in pro per, petitioner filed a request to proceed in forma pauperis on appeal. However, the notice of appeal filed by petitioner's counsel states that the filing fee for the appeal will be paid. Accordingly, the request to proceed in forma pauperis on appeal filed by petitioner will be denied.
Accordingly, IT IS HEREBY ORDERED that:
1. A certificate of appealability is issued in the present action; and
2. Petitioner's December 24, 2008 request to proceed in forma pauperis ...