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Oubichon v. California Dept. of Corrections and Rehabilitation

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


February 17, 2009

RAYMOND L. OUBICHON, PETITIONER,
v.
CALIFORNIA DEPT. OF CORRECTIONS AND REHABILITATION, ET AL., RESPONDENT.

The opinion of the court was delivered by: Garland E. Burrell, Jr. United States District Judge

ORDER

Petitioner, a state prisoner proceeding pro se, has filed a timely notice of appeal of this court's January 21, 2009 order denying his application for 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 "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 in his petition that (1) the trial court erred when it modified petitioner's conviction to attempted criminal threat without resubmitting the matter to a jury; (2) the trial court gave a jury instruction which undermined the reasonable doubt burden of proof; (3) the readback of testimony to jurors outside the presence of and without notice to petitioner or his attorney violated the Sixth Amendment; (4) there was insufficient evidence to support petitioner's conviction and insufficient evidence of a prior conviction used as an enhancement; (5) the sentence imposed constitutes cruel and unusual punishment; (6) both trial and appellate counsel rendered ineffective assistance of counsel; and (7) the trial court erred when it denied petitioner's motion to strike a "strike."

Accordingly, Petitioner is granted a certificate of appealability on the above stated issues.


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