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Allan Tracy Gilmore v. Debra Dexter

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


January 11, 2011

ALLAN TRACY GILMORE, PETITIONER,
v.
DEBRA DEXTER, ET AL.,
RESPONDENTS.

The opinion of the court was delivered by: Hon. Dana M. Sabraw United States District Judge

ORDER PARTIALLY GRANTING PETITIONER'S REQUESTFOR CERTIFICATE OF APPEALABILITY

On November 18, 2010, this Court entered an Order denying Petitioner's Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, and adopting Magistrate Judge Jan M. Adler's Report and Recommendation. (Doc. 66.) Petitioner filed a Notice of Appeal and Request for Certificate of Appealability on December 15, 2010. (Doc. 68.)

A certificate of appealability is authorized "if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). "A petitioner satisfies this standard by demonstrating that jurists of reason could disagree with the district court's resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further." Miller-El v. Cockrell, 537 U.S. 322, 327 (2003); see also Slack v. McDaniel, 529 U.S. 473, 484 (2000)("The petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong."). Having reviewed the Petition, Report and Recommendation, November 18 Order denying the Petition, and Petitioner's request for a certificate of appealability, the Court finds Petitioner has made the showing required by § 2253(c)(2) with respect to his claims relating to his trial counsel's alleged ineffectiveness in failing to investigate his juvenile criminal history and properly advise him regarding the plea agreement (claims 6, 8, 9, and 10 in the Petition). Accordingly, the Court grants a certificate of appealability as to these specific issues. 28 U.S.C. § 2253(c)(3). However, as to the remaining claims and issues raised in the Petition, the Court finds Petitioner has failed to demonstrate that reasonable jurists would find this Court's assessment of such claims debatable. Therefore, the Court denies Petitioner's request for a certificate of appealability as to such other claims.

IT IS SO ORDERED.

20110111

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