Opinion
04-CR-0196-C-01, 06-C-0152-C.
July 3, 2006
ORDER
Defendant John Bednarski has filed a notice of appeal, paid his filing fee and asked for a certificate of appealability, which he needs if he is to appeal the denial of his motion for postconviction relief brought pursuant to 28 U.S.C. § 2255. See 28 U.S.C. § 2253(c)(1)(A); Fed.R.App.P. 22. Such a certificate shall issue "only if the applicant has made a substantial showing of the denial of a constitutional right." § 2253(c)(2).
Before issuing a certificate of appealability, a district court must find that the issues the applicant wishes to raise are ones that "are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further."Barefoot v. Estelle, 463 U.S. 880, 893 n. 4 (1983). Because it was necessary to hold an evidentiary hearing on defendant's claim that he had been denied the effective assistance of trial counsel and because I made credibility decisions in the course of the hearing, I am prepared to say that a court could resolve the issues differently.
I conclude that the issue defendant wishes to raise might be debatable among reasonable jurists and for that reason find him entitled to the issuance of a certificate of appealability.
ORDER
IT IS ORDERED that defendant John Bednarski's request for a certificate of appealability is GRANTED.