Free Certificate of Appealability Issued - District Court of Arizona - Arizona

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA UNITED STATES OF AMERICA, Plaintiff/Appellee, vs. RAFAEL CRUZ-AYON, Defendant/Appellant, ) ) CASE NO. CR 03-1096-PHX-SMM ) CV 05-2576-PHX-SMM (BPV) ) ) ORDER ) ) re: CERTIFICATE OF APPEALABILITY ) and IN FORMA PAUPERIS STATUS )

I, Stephen M McNamee Judge of the United States District Court for the District of Arizona, certify that I have examined Rafael Cruz-Ayon's Motion to vacate/set aside sentence pursuant to 28 U.S.C. § 2255 filed in this Court, and FIND: /XX / Certificate of Appealability Granted. Probable cause exists for the appeal taken in the above-named cause through the United States Court of Appeals for the Ninth Circuit from the Order of this Court denying petitioner's motion pursuant to 28 U.S.C. §2255, and GRANTS that petitioner be allowed to proceed in forma pauperis for this appeal. The appellant has made a substantial showing of the denial of a constitutional right with respect to the following issues: Ineffective assistance of counsel for failure to file a notice of appeal. See dkt. 76. Although it is a close call, because the Court's Order of March 6, 2007 relies on a credibility finding, in an abundance of caution, the Court finds the certificate of appealability shall be granted.

The clerk shall forthwith notify the parties of the entry of this Order regarding Certificate of Appealability and In Forma Pauperis Status on Appeal. DATED this 12th day of March, 2007.

Case 2:03-cr-01096-SMM

Document 79

Filed 03/13/2007

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