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Morris v. Carey

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


April 11, 2010

ROLON LAMARR MORRIS, II, PETITIONER,
v.
THOMAS CAREY, ET AL., RESPONDENTS.

The opinion of the court was delivered by: Garland E. Burrell, Jr. United States District Judge

ORDER

Petitioner, a state prisoner proceeding through counsel, has timely filed a notice of appeal of this court's March 5, 2010 denial of his application for a writ of habeas corpus together with a motion for a certificate of appealability pursuant to 28 U.S.C. § 2253(c) and 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(s) presented in the instant petition: (1) whether the prosecutor exercised a peremptory challenge to strike an African American juror on the basis of race, in violation of Batson v. Kentucky, 476 U.S. 79 (1986); and (2) whether petitioner's right to due process was violated by admission at trial of unreliable identification evidence.

Accordingly, IT IS HEREBY ORDERED that:

1. Petitioner's March 16, 2010 motion for a certificate of appealability is granted; and

2. The Clerk of the Court is directed to process petitioner's appeal to the United States Court of Appeals for the Ninth Circuit.


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