IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
April 3, 2009
JAVIAD AKHTAR, PETITIONER,
MIKE KNOWLES, WARDEN, RESPONDENT.
The opinion of the court was delivered by: Morrison C. England, Jr. United States District Judge
Petitioner, a state prisoner proceeding with appointed counsel, has timely filed a notice of appeal of this court's February 9, 2009, 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 issue presented in the instant petition, whether trial and appellate counsel were ineffective for: 1) failing to challenge the appointment of one instead of two psychiatrists or psychologists; 2) failing to challenge the presence of a support person during the accuser's testimony; 3) failing to challenge the admission of evidence relating to genital injuries; 4) failing to request a self defense instruction; 5) failing to request an instruction on attempted voluntary manslaughter; 6) failing to object to the issuance of an erroneous jury instruction.
Accordingly, IT IS HEREBY ORDERED that a certificate of appealability is issued in the present action.