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Hernandez v. McGrath

February 25, 2009

DAVID HERNANDEZ, PETITIONER,
v.
JOSEPH MCGRATH, RESPONDENTS.



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

ORDER

Petitioner, a state prisoner proceeding with appointed counsel, has timely filed a notice of appeal of this court's January 21, 2009, partial grant 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) improper discovery sanctions; 2) ineffective assistance of trial counsel; 3) prosecutorial misconduct; 4) improper exclusion of a dying declaration.

Accordingly, IT IS HEREBY ORDERED that a certificate of appealability is issued ...


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