MARSHA PECHMAN, District Judge
This matter comes before the Court on Petitioner's motion for a certificate of appealability. (Dkt. No. 24.) Having considered Mr. Sutton's motion, Respondent's opposition (Dkt. No. 25), and the balance of the record, the Court GRANTS the motion and hereby issues a certificate of appealability on both issues presented by Petitioner.
Under 28 U.S.C. § 2253(c) a petitioner may not appeal the denial of a habeas corpus petition unless the district court or a circuit court issues a certificate of appealability. The Court may only issue a certificate of appealability "if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). To satisfy this requirement, the petitioner must show "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 presented were `adequate to deserve encouragement to proceed further.'" Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quotingBarefoot v. Estelle, 463 U.S. 880, 893 n. 4 (1983)).
Mr. Sutton's petition involved two grounds for relief. First, he argued that the information in his criminal case was constitutionally inadequate because it did not include the elements of predicate offenses underlying the offense charged. Although Mr. Sutton does not cite Supreme Court caselaw directly supporting his position, he relies on a Ninth Circuit decision that does. See Kreck v. Spalding, 721 F.2d 1229, 1233 (9th Cir. 1983). As this Court stated in its order,Kreck does not assist Mr. Sutton under the applicable standard of review. (See Dkt. No. 21 at 6.) However, the Court acknowledges that, given Ninth Circuit precedent, there may be some merit to Petitioner's argument and finds that it presents a question that "deserve[s] encouragement to proceed further." Slack, 529 U.S. at 484. The Court therefore grants Petitioner's motion for a certificate of appealability on this issue.
Second, Mr. Sutton argued that the improper remarks made by the prosecutor in his closing argument violated Mr. Sutton's due process right to a fair trial. This Court found that the contested remarks did not rise to the level of a due process violation because they were isolated and did not comprise the theme of the closing argument. (See Dkt. No. 21 at 7-10.) Although the Court believes Petitioner is unlikely to succeed on appeal, it acknowledges that the merits of this second claim for relief are at least debatable. Given this conclusion, the Court must grant Petitioner's motion for a certificate of appealability on this issue. See Miller-El v. Cockrell, 537 U.S. 322, 338 (2003).
Petitioner's motion is hereby GRANTED.
The Clerk is directed to send copies of this order to all counsel of record.