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United States v. Astorga

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


February 3, 2010

UNITED STATES OF AMERICA, PETITIONER,
v.
FRANCISCO ACOSTA ASTORGA, DEFENDANT.

ORDER ISSUING A CERTIFICATE OF APPEALABILITY

Defendant Francisco Acosta Astorga seeks to appeal from this court's Order filed December 4, 2009 denying defendant's motions to vacate his judgment of conviction under 28 U.S.C. § 2255 or alternatively under 28 U.S.C. § 1651. Before defendant 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 defendant 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)).

Defendant has made a sufficient showing to justify issuance of a certificate of appealability on the issues of whether his motion under 28 U.S.C. § 2255 was timely and whether he was denied his Sixth Amendment right to effective assistance of counsel.

IT IS THEREFORE ORDERED that a certificate of appealability is hereby issued.

20100203

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