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 Dora Schriro, Director of the Arizona Department of Corrections, is substituted

pursuant to Fed. R. Civ. P. 25(d)(1).

WO

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Milo McCormick Stanley, 

Petitioner, 

v.

Dora Schriro, et al.,1

Respondents. 

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No. CV-98-0430-PHX-MHM

DEATH PENALTY CASE

 ORDER RE: CERTIFICATE OF 

 APPEALABILITY

 

The Court has denied Petitioner Milo McCormick Stanley’s petition for a writ of

habeas corpus. In the event Petitioner appeals from this Court’s judgment, in the interests

of conserving scarce Criminal Justice Act funds that might be consumed drafting an

application for a certificate of appealability to this Court, the Court on its own initiative has

evaluated the claims within the petition for suitability for the issuance of a certificate of

appealability. See 28 U.S.C. § 2253(c); Turner v. Calderon, 281 F.3d 851, 864-65 (9th Cir.

2002). 

Rule 22(b) of the Federal Rules of Appellate Procedure provides that when an appeal

is taken by a petitioner, the district judge who rendered the judgment “shall” either issue a

certificate of appealability (“COA”) or state the reasons why such a certificate should not

issue. Pursuant to 28 U.S.C. § 2253(c)(2), a COA may issue only when the petitioner “has

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made a substantial showing of the denial of a constitutional right.” This showing can be

established by demonstrating that “reasonable jurists could debate whether (or, for that

matter, agree that) the petition should have been resolved in a different manner” or that the

issues were “adequate to deserve encouragement to proceed further.” Slack v. McDaniel,

529 U.S. 473, 484 (2000) (citing Barefoot v. Estelle, 463 U.S. 880, 893 & n.4 (1983)). For

procedural rulings, a COA will issue only if reasonable jurists could debate (1) whether the

petition states a valid claim of the denial of a constitutional right, and (2) whether the court’s

procedural ruling was correct. Id.

The Court finds that reasonable jurists could debate its resolution of the issues set

forth in Claims 1 and 2. The Court therefore grants a certificate of appealability as to these

issues. For the reasons stated in the Court’s Memorandum of Decision and Order filed

simultaneously on this date, as well as the Order regarding the procedural status of

Petitioner’s claims filed on July 31, 2000 (dkt. 43), the Court declines to issue a certificate

of appealability for Petitioner’s remaining claims and procedural issues.

Based on the foregoing,

IT IS HEREBY ORDERED that the Court grants a Certificate of Appealability as

to the following issues:

Whether Claim 1, alleging that the continued interrogation of Petitioner after

he had invoked his Miranda rights, and the trial court’s admission of his

statements, violated Petitioner’s rights under the Fifth, Sixth, and Fourteenth

Amendments, fails on the merits;

Whether Claim 2, alleging that Petitioner’s right to effective assistance of

counsel under the Sixth and Fourteenth Amendments was violated by trial

counsel’s failure to investigate and present a defense based on the absence of

premeditation, fails on the merits.

DATED this 27th day of September, 2006.

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