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Gonzalez v. Runnels

September 17, 2009

ALEJANDRO RANGEL GONZALEZ, PETITIONER,
v.
D.L RUNNELS, WARDEN, RESPONDENT.



ORDER

Petitioner, a state prisoner proceeding with counsel has timely filed a notice of appeal of this court's August 24, 2009, dismissal 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 issue presented in the instant petition: whether petitioner's due process rights were violated by the trial court's refusal to instruct the jury on petitioner's theory of defense, that the discharge of the firearm was grossly negligent, not intentional.

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


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