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Xiong v. Felker

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


August 31, 2009

TONG XIONG, PETITIONER,
v.
TOM FELKER, ET AL., RESPONDENTS.

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

ORDER

Petitioner is prisoner of the State of California. His application for writ of habeas corpus brought pursuant to 28 U.S.C. § 2254 was denied on June 24, 2009.

Petitioner has filed a notice of appeal with regard to that decision and submitted an application to proceed in forma pauperis. Petitioner's declaration makes the showing required by 28 U.S.C. § 1915(a), and his request to proceed on appeal in forma pauperis will be granted.

Before petitioner can appeal, a certificate of appealability must also 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 "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

A substantial showing was made that (1) petitioner received ineffective assistance of counsel at trial, (2) jury misconduct deprived him of his right to an impartial jury, and (3) his federal due process rights were violated when the trial court construed California law to allow jurors to refuse to discuss their deliberations and the alleged misconduct with the defense after trial.

Accordingly, IT IS HEREBY ORDERED that:

(1) A certificate of appealability shall issue in the present action; and

(2) Petitioner's July 28, 2009 motion to proceed on appeal in forma pauperis is granted.


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