IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
April 7, 2009
BENNY LEON, JR., PETITIONER,
RICHARD KIRKLAND, ET AL., RESPONDENTS.
Petitioner, a state prisoner proceeding pro se, has filed a timely notice of appeal of this court's February 9, 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's evidentiary rulings and instructional errors, either individually or in combination, violated his right to due process; and (2) the upper term sentence imposed violates the principles announced by the Supreme Court in Blakely v. Washington.
Accordingly, IT IS HEREBY ORDERED that a certificate of appealability shall issue in the present action.