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Dunford v. Veal

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


January 15, 2009

MERVIN SANDY DUNFORD, PETITIONER,
v.
M. VEAL, RESPONDENT.

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

ORDER

On August 25, 2008, this action was dismissed because petitioner had not obtained permission from the Ninth Circuit to proceed with this second or successive petition. On June 5, 2008, petitioner filed a request for a certificate of appealability. The court will now direct the Clerk of the Court to process petitioner's appeal. Fed. R. App. P. 4(a)(2).

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 issue presented in the instant petition: Whether he should be allowed to proceed with this successive petition.

Accordingly, IT IS HEREBY ORDERED that:

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

2. The Clerk of the Court is directed to process petitioner's appeal filed June 5, 2008.


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