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Vasquez v. Yates

August 31, 2009

JESSE JOSEPH VASQUEZ, PETITIONER,
v.
JAMES A. YATES, ET AL., RESPONDENTS.



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

ORDER

Petitioner, a state prisoner proceeding by and through counsel, has filed a timely notice of appeal of this court's July 17, 2009 order and judgment denying his application for 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 "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

Here, petitioner has made a substantial showing that his due process rights were violated when jury instructions given at his criminal trial permitted the jury to find true a drug weight allegation without any proof of his knowledge or intent with respect to the quantity of drugs. Accordingly, IT IS HEREBY ...


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