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DANIEL J. BRODERICK, Bar #89424

Federal Defender

DAVID M. PORTER, Bar #127024

Assistant Federal Defender

801 I Street, 3rd Floor

Sacramento, California 95814

Telephone: (916) 498-5700

Attorney for Petitioners

ALONZO DEON JOHNSON and DARRYL THOMPSON

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

ALONZO DEON JOHNSON,

Petitioner,

v.

CLAUDE E. FINN, Warden,

Respondent.

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No. Civ. S 03-2063 JAM JFM P

NOTICE OF APPEAL; REQUEST FOR

CERTIFICATE OF APPEALABILITY; 

ORDER

DARRYL THOMPSON,

Petitioner,

v.

TOM L. CAREY, Warden,

Respondent.

_______________________________

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No. Civ. S 04-2208 JAM JFM P

NOTICE OF APPEAL; REQUEST FOR

CERTIFICATE OF APPEALABILITY; 

ORDER

NOTICE is hereby given that petitioners, ALONZO DEON JOHNSON and

DARRYL THOMPSON, appeal to the United States Court of Appeals for the

Ninth Circuit from the district court’s order adopting in part and

denying in part the findings and recommendations of the magistrate

judge, and the judgment entered on March 23, 2010. 

Mssrs. Johnson and Thompson also request this court issue the

certificate of appealability lodged herewith. See 28 U.S.C. § 2253(c);

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 The Rules Governing Section 2254 Proceedings were recently 1

amended to require district courts “to issue or deny a certificate of

appealability when it enters a final order adverse to the applicant.” 

Rule 11, Rules Governing Section 2254 Proceedings (2009) (emphasis

added). 

Barefoot involved the showing required, under pre-AEDPA law, for 2

issuance of a certificate of probable cause. The same standard applies

under § 2253(c). Slack, 529 U.S. at 484-85.

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Fed. R. App. P. 22(b); see also Slack v. McDaniel, 529 U.S. 473, 483

(2000) (AEDPA provisions for certificate of appealability apply to

habeas appeals initiated after effective date of statute). 

1

STANDARDS FOR CERTIFICATE OF APPEALABILITY

To obtain a certificate of appealability, a habeas corpus

petitioner must make a “substantial showing of the denial of a

constitutional right.” 28 U.S.C. §2253(c)(2). The petitioner “need

not show that he should prevail on the merits.” Barefoot v. Estelle,

463 U.S. 880, 893 n.4 (1983). A claim warrants issuance of a

certificate if it presents a “question of some substance,” i.e., an

issue (i) that is “‘debatable among jurists of reason’”; (ii) “‘that a

court could resolve in a different manner’”; (iii) that is “‘adequate

to deserve encouragement to proceed further’”; or (iv) that is not

“squarely foreclosed by statute, rule, or authoritative court decision,

or . . . [that is not] lacking any factual basis in the record.” Id.,

at 893 n.4, 894. As the Supreme Court clarified: 2

At the COA stage . . ., a court need not make a definitive

inquiry into [the merits of the habeas petition]. As we have

said, a COA determination is a separate proceeding, one

distinct from the underlying merits. The Court of Appeals

should have inquired whether a “substantial showing of the

denial of a constitutional right” had been proved. Deciding

the substance of an appeal in what should only be a threshold

inquiry undermines the concept of a COA. The question is the

debatability of the underlying constitutional claim, not the

resolution of that debate.

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 Even though the prosecutor “placed great weight on the fact that 3

Mr. Jones could not spell, even misspelling the title of his own job,”

(CR #62 at 20), this Court did not mention that factor in its March 23,

2010 order.

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Miller-El v. Cockrell, 537 U.S. 322, 342 (2003) (citations omitted).

ISSUE TO BE RAISED ON APPEAL

The issue sought to be raised on appeal is whether petitioners’ 

constitutional rights were violated by the prosecutor’s improper use of

peremptory challenges to exclude African-American jurors. 

The magistrate judge conducted an evidentiary hearing in this

case, during which the prosecutor testified as to the circumstances

surrounding his exercise of peremptory challenges against three

prospective African-American jurors. After post-hearing briefs were

filed, the magistrate judge issued thorough and thoughtful findings and

recommendations, 43 pages in length. While he found that the

prosecutor had legitimate, race-neutral reasons for excusing two 

prospective African-American jurors, he concluded that the prosecutor’s

stated reasons for excluding the third prospective African-American

juror, Mr. Willie Lee Jones, III, were a pretext for eliminating him

from the jury because of his race. The magistrate judge examined each

and every reason the prosecutor claimed (both at voir dire and during

the evidentiary hearing) was the basis for the challenge, including

that Mr. Jones was a bad speller, which he concluded was “trivial in

the extreme.” After conducting a comparative juror analysis in 3

painstaking detail, the magistrate judge concluded that the results

“fatally undermine[d] the credibility of the prosecutor’s stated

justification for excusing Mr. Jones and demonstrate[d] that Mr. Jones’

youth, marital status, residence and poor spelling could

not have genuinely motivated the prosecutor to strike him.” (CR #62 at

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22).

This Court, without the benefit of observing the prosecutor

testify, appears to have rejected the magistrate judge’s credibility

finding on this issue, but see Snyder v. Louisiana, 552 U.S. 472, 477

(2008) (emphasizing that in reviewing Batson challenges,

“determinations of credibility and demeanor lie peculiarly within a

trial judge’s province . . [and] that in the absence of exceptional

circumstances, we would defer to the trial court”), and, in its threeand-a-half page order, concluded that petitioners failed to provide

evidence that the prosecutor removed Mr. Jones from the jury based on

purposeful racial discrimination. Because the issue is at least

“debatable among jurists of reason,” the certificate of appealability

should issue.

CONCLUSION

We request the Court issue the Certificate Of Appealability lodged

herewith.

DATED: March 23, 2010

Respectfully submitted,

DANIEL J. BRODERICK

Federal Defender

 /s/ David M. Porter 

DAVID M. PORTER

Assistant Federal Defender

Attorney for Petitioners

ALONZO DEON JOHNSON AND DARRYL THOMPSON

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O R D E R

Under authority of Title 28, United States Code section 2253(c),

and Federal Rule of Appellate Procedure 22(b)(1), the Court hereby

certifies that there is cause for an appeal in the above-entitled case. 

Accordingly, a certificate of appealability is hereby granted as to the

following issue: whether petitioners’ constitutional rights were

violated by the prosecutor’s improper use of peremptory challenges to

exclude African-American jurors.

IT IS SO ORDERED.

DATED: March 23, 2010

/s/ John A. Mendez 

U.S. District Court Judge

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