On May 21, 2009 Ivan was granted a COA, Certificate of Appealability, on 4 major issues. The Appeal was filed in August and all of the responses and replies from the State and the defense have been completed and now we are waiting on a decision from the 5th Circuit Court of Appeals. We have a wonderful attorney that is truly fighting for Ivan and we are so grateful and very blessed.
What is a COA?
A certificate of probable cause (CPC) is generally issued to indicate that an attempt to bring an appeal is not frivolous. CPCs are governed by federal and state laws, which vary by jurisdiction. For example, in one state, a defendant may not appeal from a judgment of conviction following a guilty or no contest plea, unless he files with the trial court a written, sworn statement “showing reasonable, constitutional, jurisdictional, or other grounds going to the legality of the proceedings,” and the trial court executes and files “a certificate of probable cause for such appeal with the county clerk. It attempts to determine whether the appeal is clearly frivolous and vexatious or whether it involves an honest difference of opinion.
A federal law required a petitioner in state custody to obtain a CPC to establish federal appellate court jurisdiction over an appeal of the district court’s denial of a habeas corpus petition. A CPC required a showing of more than good faith or an absence of frivolity.
In Barefoot v. Estelle, 463 U.S. 880 (1983), the Supreme Court held that a CPC requires a “substantial showing of the denial of a federal right.” In a capital case, the nature of the death penalty is a proper subject of consideration in determining whether to issue a certificate, but the “severity of the penalty does not in itself suffice to warrant the automatic issuing of a certificate.” A substantial showing of the denial of a federal right does not require a showing that the petitioner would prevail on the merits. Rather, the Court held that petitioner must demonstrate one of the following: (1) the issue presented is “debatable among jurists of reason,” (2) a court could resolve the issue in a different manner, or (3) the issue deserves further proceedings.
In 1996, a federal law was enacted to require a “certificate of appealability” (COA) for both certain cases. Circuit courts may grant a COA only upon a “substantial showing of the denial of a constitutional [not a federal] right.” Also in contrast to the former CPC protocol, AEDPA requires a COA to be issued on a claim specific basis.
On Tuesday March 17, 2009 we received our opinion from the court on our Federal Habeas Corpus Writ. We were denied on all points and now we go into the 5th Circuit Court out of New Orleans. We were denied because we are procedurally barred on every issue due to the incompetence of Ivan's previous State Habeas Appellate attorneys. The Appellate system is supposed to be a blanket to correct issues from the very beginning; the time of the arrest all the way through the last day of the trial. In a Death Penalty case this is not so if: the Appellate Attorney does NOT raise the issues in the previous Appeal. Since the State Habeas Attorneys did not raise any issues other than mitigation; Ivan is procedurally barred from raising any other issues now. Why should the inmate suffer and DIE because the attorney did not do their job?
Ivan is a loving husband, son, brother, step-father, an adoring step-grandfather and a loyal friend. He is an INNOCENT man whom sits on Death Row for a crime that he did not commit. The proof of his INNOCENCE is there; as it has been from the beginning. The State's main witness gave perjured testimony after being prepared for 6 hours, days before the trial began and she had given four different statements to the police days and months after the murders. There was nothing in her testimony that was not available in the newspapers and on the internet. She had all the answers for the State's Direct examination and was not so apt to answer the Defenses questions with the same confidence. There are phone records, toll way records.........................
This is not about pointing the finger and placing blame on others. This is about saving the life of Ivan Cantu. We have the greatest empathy for the families of the victims; adding another murder [Ivan's] will not serve justice. If anyone has any information about the murders of James and Amy; please stand up and be heard: Before it is too late!
Ivan Cantu #999399 Polunsky Unit 3872 FM 350 South Livingston, Texas 77351
We have hired a new Private Investigator, thanks to the warm hearts of a few caring friends and supporters. God bless you for all of your assistance. We are running out of time as we were just denied in the 5th Circuit. If you are able; we desperately need monetary assistance for the Investigator, in order for him to do a complete investigation. Please find it in your hearts to help save Ivan's life.