UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
June 6, 2011
DON CARLOS BROWN,
KENNETH CLARK, WARDEN,
The opinion of the court was delivered by: Valerie Baker Fairbank United States District Judge
ORDER ACCEPTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE AND GRANTING IN PART AND DENYING IN PART CERTIFICATE OF APPEALABILITY
Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition, the records on file, and the Report and Recommendation of United States Magistrate Judge and has considered de novo the portions of the Report as to which objections have been filed. The Court accepts the Magistrate Judge's Report and adopts it as its own findings and conclusions.
Further, on March 21, 2011, Petitioner filed a motion seeking a certificate of appealability. See 28 U.S.C. § 2253; Fed. R. App. P. 22(b). The Court concludes that its decision as to Petitioner's second claim of error under Crawford v. Washington, 541 U.S. 36 (2004)--that the trial court erred when it allowed a gang expert to testify that he had heard that Petitioner had been beaten up by a rival gang member a month before the shooting---is "debatable amongst jurists of reason." Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). As a result, the Court hereby grants a certificate of appealability on that issue.
As to the other issues raised by Petitioner, the Court finds that he has not made a substantial showing of the denial of a constitutional right and, therefore, a certificate of appealability is denied as to them. See Rules Governing Section 2254 Cases in the United States District Courts, Rule 11(a); 28 U.S.C. § 2253(c)(2); Fed. R. App. P. 22(b); Miller-El, 537 U.S. at 336.
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