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Len Nguyen v. M. Knowles

June 30, 2011

LEN NGUYEN,
PETITIONER,
v.
M. KNOWLES, WARDEN, RESPONDENT.



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

ORDER

Petitioner, a state prisoner proceeding pro se, has timely filed a notice of appeal of this court's May 4, 2011, denial 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 there was insufficient evidence for the trial court to allow the jury to find an intent to aid and abet a crime that posed the risk of serious bodily injury or death; and 2) whether the trial court's failure to identify/define the "target offense" under the natural and probable consequences doctrine was a violation of due process.

Accordingly, IT IS HEREBY ORDERED that a certificate of appealability is issued as to each of the above ...


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