IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
October 22, 2010
HUNG PHUOC NGUYEN, PETITIONER,
MIKE KNOWLES, RESPONDENT.
Petitioner, a state prisoner proceeding through counsel, has timely filed a notice of appeal of this court's order granting in part and denying in part 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).
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
In his motion, petitioner has made a substantial showing of the denial of a constitutional right in the following issue: whether petitioner's rights to due process and to counsel were violated when petitioner was absent from an in camera hearing between the court and his trial counsel and, if so, whether the error is structural or, in the alternative, whether the error prejudiced petitioner at trial.
Accordingly, IT IS HEREBY ORDERED that:
1. Petitioner's October 18, 2010 motion for a certificate of appealability is granted;
2. A certificate of appealability is issued in the present action; and
3. The Clerk of the Court is directed to process petitioner's appeal to the United States Court of Appeals for the Ninth Circuit.