Free Motion for Certificate of Appealability - District Court of Colorado - Colorado

Case 1:03-cv-00671-EWN-PAC

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Filed 05/19/2006

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO CASE NO. 03-cv-00671-EWN-PAC TREVOR P. JONES, Petitioner, v. JOSEPH ORTIZ, Director, Colorado Department of Corrections, RICK SOARES, Warden, Limon Correctional Facility, Limon, Colorado and KEN SALAZAR, Attorney General, State of Colorado, Respondents.

PETITIONER'S REQUEST FOR ISSUANCE OF CERTIFICATE OF APPEALABILITY ______________________________________________________________________________ Petitioner, Trevor P. Jones, through undersigned counsel, respectfully requests that this Court issue him a certificate of appealability. In support of this request, counsel states as follows: 1. Mr. Jones is appealing this Court's Order, entered on April 20, 2006, and the final

judgment entered on April 21, 2006 dismissing his petition for a writ of habeas corpus. He has filed a notice of appeal contemporaneously with this request for a certificate of appealability. 2. To proceed on appeal from this Court's judgment, Mr. Jones must obtain a

certificate of appealability. See generally Slack v. McDaniel, 529 U.S. 473 (2000); see also 28 U.S.C. § 2253(c)(1). The United States Court of Appeals for the Tenth Circuit has directed that requests for the issuance of a certificate of appealability be made first to the district court. See in re: Procedures Regarding the Prison Litigation Reform Act and the Antiterrorism and Effective Death Penalty Act (Emergency General Order) (10th Cir. Oct. 1, 1996).

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3.

A habeas petitioner is entitled to a certificate of appealability if he "has made a

substantial showing of the denial of a constitutional right." See 28 U.S.C. § 2253(c)(2). 4. The standard for determining whether a certificate of appealability should issue is

not demanding. As with a certificate of probable cause under the pre-AEDPA version of the habeas corpus statutes, the petitioner should receive a certificate of appealability if "reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong," See Slack, 529 U.S. at 484, or "that the issues presented were `adequate to deserve encouragement to proceed further.'" Id. (quoting Barefoot v. Estelle, 463 U.S. 880, 893 & n. 4 (1983)); see also Tillman v. Cook, 215 F.3d 1116, 1120 (10th Cir. 2000). 5. Mr. Jones requests that this Court issue a certificate of appealability on the

substantive issues addressed in his Petition, his Traverse and his written list of objections to the Magistrate's recommendation. That is, under applicable trial by jury and due process principles Petitioner was entitled to have the Colorado Court of Appeals impose a 6 year sentence for the reckless manslaughter conviction and to have the felony murder conviction and attendant life without parole sentence vacated. 6. Mr. Jones' Petition, the traverse and the written list of objections set forth in detail

the reasons why he is entitled to relief on his Due Process and Trial by Jury claims. Although this Court rejected those arguments, they are sufficiently serious to make Mr. Jones' claims debatable among jurists of reason. Mr. Jones incorporates those arguments here and relies on them in requesting that this Court issue a certificate of appealability.

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7.

Mr. Jones certainly has made a substantial showing that his constitutional rights to

due process and to trial by jury were denied. Accordingly, this Court should grant him a certificate of appealability. See 28 U.S.C. § 2253(c)(2). WHEREFORE, Mr. Jones requests that this Court issue a certificate of appealability, permitting him to appeal to the United States Court of Appeals for the Tenth Circuit the denial of his petition for writ of habeas corpus.

Dated this 19th day of May, 2006 DAVID S. KAPLAN Colorado State Public Defender

s/ Andrew C. Heher___________ Andrew C. Heher, #16891 Deputy State Public Defender Counsel of Record Attorney for Trevor P. Jones 110 Sixteenth Street, Suite 800 Denver, Colorado 80202 phone: 303.620.4888 fax: 303.620.4931 email: [email protected]

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CERTIFICATE OF SERVICE I certify that on May 19, 2006, I filed the herein motion through the CM/ECF system which will send notification of such filing to the following e-mail addresses: Secretary, Colorado State Public Defender [email protected] Assistant Attorney General [email protected] and I certify that I have mailed the petition to the following non CM/ECF participants by U.S. Mail indicated by the non-participant's name: Joe Ortiz, Director, Colorado Department of Corrections, 2862 South Circle Drive, Suite 400, Colorado Springs, Colorado 80906 Rick Soares, Highway 71, County Road 3C, Limon, Colorado, 80826

s/ Andrew C. Heher___________ Andrew C. Heher, #16891 Deputy State Public Defender Counsel of Record Attorney for Robin V. Tally 110 Sixteenth Street, Suite 800 Denver, Colorado 80202 phone: 303.620.4888 fax: 303.620.4931 email: [email protected]