UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
October 24, 2011
ERIC WILTON BURTON,
DIRECTOR, CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION, RESPONDENT.
The opinion of the court was delivered by: Honorable Larry Alan Burns United States District Judge
ORDER RE: CERTIFICATE OF APPEALABILITY
The Court denied Burton's habeas petition on September 30, 2011. Since then, Burton has filed a notice of appeal and an application for a certificate of appealability.
Burton is entitled to a certificate of appealability only if he "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). Burton doesn't have to show that he should prevail on the merits. "He has already failed in that endeavor." Lambright v. Stewart, 220 F.3d 1022, 1025 (9th Cir. 2000) (citing Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983)). At the same time, the Court shouldn't issue a COA to Burton as a matter of course. He "must prove 'something more than the absence of frivolity' or the existence of mere 'good faith' on his or her part." Miller-El, 537 U.S. at 337--38 (citing Barefoot, 463 U.S. at 893).
Burton's habeas petition presented four claims, all of which the Court rejected. The first two claims alleged that Burton's right under Faretta v. California to represent himself at trial was violated. The Court GRANTS Burton a certificate of appealability as to those two claims. While the Court found them to fail, the record allows for the possibility that a reasonable jurist might reach a different conclusion. The Court DENIES Burton a certificate of appealability, however, as to his claims under Brady and Batson. Those claims are implausible.
IT IS SO ORDERED.
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