The opinion of the court was delivered by: Morrison C. England, Jr. United States District Judge
Petitioner, a state prisoner proceeding with counsel, has timely filed a notice of appeal of this court's August 31, 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.
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 issues presented in the instant petition:
1. whether petitioner was denied the right to a unanimous jury verdict under the Sixth Amendment when the state trial court did not give a unanimity instruction to the jury on the charge of assault;
2. whether petitioner was denied due process when the state court instructed the jury on the elements of assault, permitting petitioner to be convicted because of pointing at the officer's badge;
3. whether the prosecutor committed misconduct in violation of petitioner's right to due process when the prosecutor argued that the mere act of pointing at the officer's badge constituted an assault;
4. whether petitioner was denied effective assistance of counsel, in violation of the Sixth Amendment, when trial counsel failed to (A) object to hearsay and expert opinion offered by lay witnesses, (B) produce evidence of prior misconduct by California Highway Patrol Officer Cooney; and (C) offer and introduce additional expert testimony in support of the defense.
Accordingly, IT IS HEREBY ORDERED that a certificate of appealability is issued ...