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Guzman v. Lamarque

May 21, 2009

STEVEN ANTHONY GUZMAN, PETITIONER,
v.
A. LAMARQUE, WARDEN, RESPONDENT.



ORDER

Petitioner, a state prisoner proceeding pro se, has timely filed a notice of appeal of this court's denial April 24, 2009, denial 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 issues presented in the instant petition: 1) whether due process was violated by imposition of a 31-year-to-life sentence when the trial court only advised petitioner, at the time of his no-contest plea to voluntary manslaughter by use of a knife, that his maximum sentence could be 25 years to life; 2) whether petitioner was subjected to ineffective assistance of counsel with regard to imposition of the sentence; 3) whether sufficient evidence supported the trial court's finding that petitioner was sane at the time of the offense.

Accordingly, IT IS HEREBY ORDERED that a certificate of appealability is issued ...


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