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Shelton v. Knowles

June 17, 2009

ADAM SHELTON, JR., PETITIONER,
v.
MIKE KNOWLES, ACTING WARDEN, RESPONDENT.



ORDER

Petitioner, a state prisoner proceeding pro se, has timely filed a notice of appeal of this court's June 3, 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 the evidence was insufficient to sustain the verdict on counts one and two in violation of due process;

2. Whether, after the trial court granted the prosecution's request for a consciousness of guilt jury instruction, the state court violated petitioner's due process rights in refusing to permit his counsel to argue that he was fleeing, not because he was guilty, but because he was potentially subject to a three-strikes sentence if falsely convicted; and

3. Whether petitioner's 31 years to life sentence for taking three computer monitors valued at $2,100 constitutes cruel and unusual punishment in violation of the Eighth Amendment.

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


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