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Vu v. Kirkland

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


August 3, 2010

HUNG VIET VU, PETITIONER,
v.
RICHARD KIRKLAND, ET AL., RESPONDENTS.

The opinion of the court was delivered by: Morrison C. England, Jr. United States District Judge

ORDER

Petitioner, a state prisoner proceeding with appointed counsel, has timely filed a notice of appeal of this court's June 25, 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). However, a COA may be grounded on a procedural claim which preclude the district court from reaching the merits of the constitutional claims. Jones v. Smith, 231 F.3d 1227, 1232 (9th Cir. 2000).

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 district court abused its discretion when it dismissed petitioner's petition as untimely; and 2) whether the district court erred in finding petitioner's claims lacked merit and would have dismissed them regardless of the petition being untimely.

Accordingly, IT IS HEREBY ORDERED that a certificate of appealability is issued in the present action.


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