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Wolcott v. Clark

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


June 29, 2010

BRANDON LEE WOLCOTT, PETITIONER,
v.
KEN CLARK, RESPONDENT.

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

ORDER

Petitioner, a state prisoner proceeding pro se, has timely filed a notice of appeal of this court's March 26, 2010, dismissal 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) whether the trial court erred in not allowing petitioner's expert witness to testify regarding the victim's blood alcohol level; and 2) whether the trial court erred in preventing petitioner from impeaching the complaining witness about her refusal to speak to the defense prior to trial. The court does not find that any other issue requested by petitioner warrants a COA.

Accordingly, IT IS HEREBY ORDERED that:

1. Petitioner's motion (Doc. 34) to file a motion for certificate of appealability in excess of 25 pages is granted;

2. A certificate of appealability is issued in the present action as set forth above.


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