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Pao Lo v. A.P. Kane

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


December 4, 2012

PAO LO, PETITIONER,
v.
A.P. KANE, RESPONDENT.

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

ORDER

Petitioner, a state prisoner, has filed an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. On December 9, 2011, an order and judgment were issued which adopted the findings and recommendations of the Magistrate Judge which recommended denying Claims IVI, but rejected the findings and recommendations as to Claims VII and VIII. Thus, the entire habeas petition was denied.

Petitioner filed a notice of appeal on January 6, 2012 and subsequently filed a request for a certificate of appealability on January 12, 2012. If Petitioner wishes to appeal the court's decision, a certificate of appealability must issue before he can do so. See 28 U.S.C. § 2253(c)(1). A certificate of appealability may issue where "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)).

Petitioner has demonstrated that a certificate of appealability should be granted on Claims VII and VIII as numbered by the Magistrate Judge in the June 17, 2011 findings and recommendations.

Accordingly, IT IS HEREBY ORDERED that a certificate of appealability is GRANTED on Claims VII and VIII as numbered by the Magistrate Judge in the June 17, 2011 findings and recommendations. A certificate of appealability is DENIED as to Petitioner's other Claims.

20121204

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