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Locke v. Evans

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


May 18, 2009

LLOYD PHILLIP LOCKE, PETITIONER,
v.
MICHAEL EVANS, RESPONDENT.

The opinion of the court was delivered by: Morrison C. England, Jr. United States District Judge

ORDER

Petitioner, a state prisoner proceeding through counsel, filed a timely notice of appeal of this court's March 8, 2009 judgment denying his application for writ of habeas corpus. Before this decision can be appealed, 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

A substantial showing was made in the petition that the trial court erred in admitting petitioner's custodial statements into evidence because they were either involuntarily given or given without proper advisement of Miranda*fn2 rights.

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


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