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McCormick v. Adams

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


March 12, 2009

WILLIAM HENRY MCCORMICK, PETITIONER,
v.
DARREL ADAMS, RESPONDENTS.

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

ORDER

Petitioner, a state prisoner proceeding with appointed counsel, has filed a notice of appeal of this court's October 22, 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's motion for certificate of appealability was served several days late, however petitioner filed a motion for extension of time pursuant to Fed. R. App. P. 4(a)(5). After reviewing petitioner's motion for extension of time, the court will grant the certificate of appealability.

Petitioner has made a substantial showing of the denial of a constitutional right in the following issues presented in the instant petition: 1) whether petitioner's right to represent himself was not knowingly and voluntarily made; 2) whether the trial court's refusal to appoint counsel mid-trial was a violation fo the Sixth Amendment.

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


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