UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
April 16, 2010
BRENT KENNETH TYLER, PETITIONER,
DARRAL G. ADAMS, RESPONDENT.
The opinion of the court was delivered by: J. Clifford Wallace United States Circuit Judge
Tyler, a state prisoner, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his sentence of 25 years to life, imposed pursuant to his guilty plea on one count of penetration with a foreign object, with enhancements admitted for committing that crime during a burglary and for involving binding the victim. On March 23, 2010, I ordered that the petition be denied. Tyler has now requested a Certificate of Appealability (COA) as to his claims (1) that his sentence was disproportionate to his crime in violation of the Eighth Amendment to the United States Constitution; (2) that he did not knowingly and intelligently waive his right to appeal the disproportionality of his sentence; and (3) alternatively, that if his waiver was valid, he received ineffective assistance of counsel because his counsel could have had no rational, tactical reason for allowing Tyler to waive his right to appeal his sentence.
"A COA may issue 'only if the applicant has made a substantial showing of the denial of a constitutional right.'" Rhoades v. Henry,598 F.3d 511, *5 (9th Cir. 2010), citing 28 U.S.C. § 2253(c)(2). A petitioner must establish that "reasonable jurists could debate whether . . . the petition should have been resolved in a different manner or that the issues presented were 'adequate to deserve encouragement to proceed further.'" Id., citing Slack v. McDaniel, 529 U.S. 473, 484 (2000).
For the reasons stated in my order denying Tyler's petition for a writ of habeas corpus, Tyler has failed to establish that jurists of reason could debate whether the petition should have been resolved in a different manner, or that the issues presented deserve encouragement to proceed further.
It is therefore ordered that I decline to issue a Certificate of Appealability. Any further request for a Certificate of Appealability must be addressed to the Court of Appeals. See Fed. R. App. P. 22(b); Ninth Cir. R. 22-1.
© 1992-2010 VersusLaw Inc.