IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
February 9, 2009
RAYMOND THOMAS PARHAM, PETITIONER,
KATHY MENDOZA-POWERS, RESPONDENTS.
The opinion of the court was delivered by: Garland E. Burrell, Jr. United States District Judge
Petitioner, a state prisoner proceeding pro se, has timely filed a notice of appeal of this court's December 9, 2008, dismissal 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) whether the trial court erred in not sua sponte instructing on a lesser offense; 2) whether there was insufficient evidence; 3) whether there was a Cunningham violation, i.e., sentence given fro the upper term without the jury having found aggravating circumstances.
Accordingly, IT IS HEREBY ORDERED that a certificate of appealability is issued in the present action.