IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
April 28, 2010
PATRICK MICHAEL KNOST, PETITIONER,
JOSEPH S. WARSHOLL, II, RESPONDENT.
The opinion of the court was delivered by: Morrison C. England, Jr. United States District Judge
Petitioner, a state prisoner proceeding through counsel, filed a timely notice of appeal of this court's order denying his application for writ of habeas corpus.
Before petitioner can appeal this court's 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 "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
In this case, petitioner alleged that (1) insufficient evidence supported his conviction; and (2) he received ineffective assistance of counsel at trial. Petitioner has failed to make a substantial showing of the denial of a constitutional right with respect to his insufficiency of the evidence claim. On the other hand, petitioner has demonstrated that his ineffective assistance of counsel claim is debatable among jurists of reason and could be resolved differently by a different court.
Accordingly, a certificate of appealability shall issue solely with respect to petitioner's claim that he received ineffective assistance of counsel at trial.
IT IS SO ORDERED.