United States District Court

For the Northern District of California

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United States District Court

For the Northern District of California

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

JOSEPH E. JOHNSON, JR.,

Petitioner,

 v.

ROBERT L. AYERS, et al.,

Respondents. /

No. C 08-05148 SI

ORDER GRANTING APPLICATION

FOR A CERTIFICATE OF

APPEALABILITY

Petitioner Joseph Johnson has filed an application for a certificate of appealability. For the

reasons set forth below, the Court GRANTS the application.

DISCUSSION

Petitioner filed a petition for writ of habeas corpus under 28 U.S.C. § 2254 on November 12,

2008, challenging the upper-term sentence imposed after his state court convictions for auto theft,

possession of a firearm by a felon, possession of ammunition by a felon, possession of drug

paraphernalia, and receipt of stolen property. This Court denied the petition on October 27, 2009, and

petitioner subsequently filed the present request for a certificate of appealability (“COA”). 

Before a habeas petitioner may appeal the denial of a petition for writ of habeas corpus, he must

obtain a COA from the court. 28 U.S.C. § 2253(c)(1). “As a result, until a COA has been issued federal

courts of appeals lack jurisdiction to rule on the merits of appeals from habeas petitioners.” Miller-El

v. Cockrell, 537 U.S. 322, 336 (2003). To obtain a COA, the petitioner must make “a substantial

showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To meet this standard, the

petitioner “must demonstrate that the issues are debatable among jurists of reason; that a court could

Case 3:08-cv-05148-SI Document 13 Filed 04/08/10 Page 1 of 2
United States District Court

For the Northern District of California

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resolve the issues in a different manner; or that the questions are adequate to deserve encouragement

to proceed further.” Doe v. Woodford, 508 F.3d 563 (9th Cir. 2007) (quoting Barefoot v. Estelle, 463

U.S. 880, 893 n.4 (1983)) (alteration omitted). The petitioner need not, however, show that his appeal

is likely to succeed. Miller-El, 537 U.S. at 337.

Petitioner’s habeas petition raised serious questions regarding the imposition of an upper-term

sentence in his case. In particular, as the Court observed in its ordering denying the habeas petition, the

Supreme Court has not yet ruled on the question of whether the prior conviction exception embodied

in Almendarez-Torres v. United States, 523 U.S. 224 (1998) permits a sentencing judge to determine

the “number and increasing severity” of a defendant’s prior convictions for sentencing purposes. This

question has resulted in disagreement among the circuits that have considered it. Compare, e.g., Butler

v. Curry, 528 F.3d 634, 644 (9th Cir. 2008) (sentencing judge may not make “qualitative evaluations

of the nature or seriousness of past crimes, because such determinations cannot be made solely by

looking to the documents of conviction”) with United States v. Smith, 474 F.3d 888, 892 (6th Cir. 2007)

(district court’s determination that criminal history was “extensive and egregious” did not violate

defendant’s Sixth Amendment rights). There is also some tension among cases within the Ninth Circuit.

Compare Butler, supra, and Kessee v. Mendoza-Powers, 574 F.3d 674 (9th Cir. 2009). 

Under these circumstances, the Court concludes that reasonable jurists could disagree as to the

proper outcome of petitioner’s case, and therefore GRANTS the application for a COA.

CONCLUSION

For the foregoing reasons and for good cause shown, petitioner’s application for a certificate of

appealability is hereby GRANTED. (Docket No. 11).

IT IS SO ORDERED.

Dated: April 8, 2010 

SUSAN ILLSTON

United States District Judge

Case 3:08-cv-05148-SI Document 13 Filed 04/08/10 Page 2 of 2