Taylor v. Evans

The opinion of the court was delivered by: John A. Mendez U. S. District Court Judge

ORDER

Petitioner, a state prisoner proceeding pro se, has timely filed a notice of appeal*fn1 of this court's July 27, 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)).*fn2

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 trial court relied on a prior narcotics conviction petitioner did not sustain as a strike in sentencing petitioner in violation of petitioner's right to due process; 2) whether respondent's motion to strike petitioner's ineffective assistance of appellate counsel claim regarding juror bias as unexhausted should have been granted; 3) whether petitioner's straight juror bias claim raised in the second amended petition was entitled to equitable tolling.

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