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Spence v. Hickman

August 13, 2009

CHARLES FRANK SPENCE, PETITIONER,
v.
ALEXANDER HICKMAN, WARDEN, RESPONDENT.



The opinion of the court was delivered by: Garland E. Burrell, Jr. United States District Judge

ORDER

Petitioner, a state prisoner proceeding pro se, has timely filed a notice of appeal of this court's July 6, 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) denial of due process and the privilege against self-incrimination by errors in adjudicating petitioner's motion to exclude his custodial statement as a violation of his Miranda*fn2 rights; (2) insufficient evidence of first degree murder; (3) insufficient evidence of special circumstances; and (4) ineffective assistance of counsel in failing to investigate and present evidence of petitioner's strongest defense, i.e. that his discussions with Smithson amounted only to mere preparation not amounting to aiding and abetting.

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


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