IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
August 31, 2009
JESSE JOSEPH VASQUEZ, PETITIONER,
JAMES A. YATES, ET AL., RESPONDENTS.
The opinion of the court was delivered by: John A. Mendez U. S. District Court Judge
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 ORDERED that a certificate of appealability shall issue in the present action.