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United States v. Barron

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


March 18, 2009

UNITED STATES OF AMERICA, RESPONDENT,
v.
JAMES ROY BARRON, MOVANT.

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

ORDER

Movant, a federal prisoner proceeding with appointed counsel, has timely filed a notice of appeal of this court's October 23, 2008, denial of his motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. Before movant 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 movant 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

Movant has made a substantial showing of the denial of a constitutional right in the following issues presented in the instant § 2255 motion: 1) whether movant's trial counsel provided ineffective assistance of counsel with regard to advising movant concerning his right to testify in his own defense (claim 1); 2) whether the movant should have been determined to be procedurally barred from proceeding on his straight claim of denial of the right to testify (claim 6).

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


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