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Vaden v. Runnels

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


February 5, 2010

ERNEST LEE VADEN, PETITIONER,
v.
D.L. RUNNELS, RESPONDENT.

The opinion of the court was delivered by: John A. Mendez United States District Judge

ORDER

Petitioner, a state prisoner proceeding pro se, has timely filed a notice of appeal of this court's December 7, 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. 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 issues presented in the instant petition: 1) ineffective assistance of counsel based on counsel's failure to present medical records regarding petitioner's treatment for alcohol abuse; 2) ineffective assistance of counsel based on counsel's failure to present expert testimony in support of petitioner's intoxication defense.

Accordingly, IT IS HEREBY ORDERED that a certificate of appealability is issued in the present action on the above stated grounds and DENIED in all other respects.


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