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Dixon v. Evans

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


June 23, 2009

BOBBY MARION DIXON, PETITIONER,
v.
MICHAEL S. EVANS, RESPONDENT.

The opinion of the court was delivered by: John A. Mendez United States District Judge

ORDER

Petitioner, a state prisoner proceeding through counsel, has timely filed a notice of appeal of this court's May 5, 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 issue presented in the instant petition: whether admission of irrelevant gang evidence in contravention of a court order was incurably prejudicial, violating due process.

Petitioner also seeks leave to proceed in forma pauperis with the assistance of counsel, pointing out that he was granted leave to proceed in forma pauperis in the district court and that counsel was appointed for him under 18 U.S.C. § 3006A(a)(2)(B). See docket # 11, # 17 & # 28. Under Fed. R. App. P. 24(a)(3)(A), as petitioner was permitted to proceed in forma pauperis in the district court and this court herein has not certified petitioner's appeal as not taken in good faith, petitioner "may proceed on appeal in forma pauperis without further authorization...."

Accordingly, IT IS HEREBY ORDERED that:

1. Petitioner's motion for a certificate of appealability, filed on May 15, 2009 (docket # 60), is hereby granted, and a certificate of appealability is issued in the present action;

2. Although petitioner's motion for leave to proceed in forma pauperis on appeal, filed on May 15, 2009 (docket # 61), does not appear to be required in the circumstances under Fed. R. App. 24(a)(3)(A), the motion is granted.


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