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Shaw v. Campbell

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


February 6, 2009

DAVID SHAW, SR., PETITIONER,
v.
ROSANNE CAMPBELL, ET AL., RESPONDENTS.

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

ORDER

Petitioner, a state prisoner proceeding through counsel, has timely filed a notice of appeal of this court's January 9, 2009, 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) denial of right to present a defense based on exclusion of witnesses who would have impeached the victim (claim 1); 2) ineffective assistance of counsel based on counsel's failure to renew attempts to have impeachment witnesses testify (claim 2); 3) ineffective assistance of counsel based on failure to call a forensic intoxication expert (claim 3); 4) ineffective assistance of counsel for failure to exclude evidence that petitioner was a violent person (claim 6); 5) ineffective assistance of counsel for failing to properly advise petitioner of his right to testify (claim 8); 6) ineffective assistance of counsel for filing to call defense witnesses (claim 9); 7) ineffective assistance of counsel for failing to adequately cross-examine victim (claim 10).

Accordingly, IT IS HEREBY ORDERED that a certificate of appealability is issued in the present action.


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