White v. Adams

Filing 36

ORDER signed by Judge William Q Hayes on 6/11/2010 GRANTING CERTIFICATE OF APPEALABILITY re 29 Notice of Appeal. (Lundstrom, T)

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 H A Y E S , Judge: O n February 19, 2009, the Court issued an Order denying with prejudice Petitioner's P e titio n for Writ of Habeas Corpus pursuant to 28 U.S.C. 2254, and Judgment was entered. (Doc. # 27, 28). O n March 19, 2009, Petitioner, a state prisoner proceeding pro se, filed a Notice of A p p e a l. (Doc. # 29). O n June 7, 2010, the United States Court of Appeals for the Ninth Circuit issued an O r d e r remanding this case to this Court "for the limited purpose of granting or denying a c e rtif ic a te of appealability." (Doc. # 35). A certificate of appealability may issue "only if the applicant has made a substantial s h o w in g of the denial of a constitutional right." 28 U.S.C. 2253(c)(2). It must appear that re a s o n a b le jurists could find the district court's assessment of the petitioner's constitutional c la im s debatable or wrong. See Slack v. McDaniel, 529 U.S. 473, 484-85 (2000). The Court W A L T E R HOWARD WHITE, P e titio n e r , vs. D E R R A L G. ADAMS, Warden, R e s p o n d e n t. C A S E NO. 1:07cv749-WQH-WMc ORDER UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA FRESNO DIVISION -1- 1:07cv749-WQH-WMc 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 o f Appeals for the Ninth Circuit has stated: [ T ]h e issuance of a COA is not precluded where the petitioner cannot meet the s ta n d a rd to obtain a writ of habeas corpus. . . . This general principle reflects the f a c t that the COA requirement constitutes a gatekeeping mechanism that p rev en ts [an appellate court] from devoting judicial resources on frivolous issues w h ile at the same time affording habeas petitioners an opportunity to persuade [ th e appellate court] . . . of the potential merit of issues that may appear, at first g la n c e , to lack merit. L a m b r ig h t v. Stewart, 220 F.3d 1022, 1025 (9th Cir. 2000) (citing, inter alia, Jefferson v. W e lb o rn , 222 F.3d 286, 289 (7th Cir. 2000) (a COA should issue unless the claims are "utterly w ith o u t merit")). "[T]he district court shall indicate which specific issue or issues satisfy the s ta n d a rd for issuing a certificate, or state its reasons why a certificate should not be granted." United States v. Asrar, 116 F.3d 1268, 1270 (9th Cir. 1997) (citing 28 U.S.C. 2253(c)(3)). A lth o u g h the Court denied Petitioner's habeas Petition, the Court finds that Petitioner ra is e d colorable, nonfrivolous, constitutional arguments with respect to Petitioner's second g ro u n d for relief that "Petitioner was denied his due process rights to call w itn e s s e s /In v e s tig a tiv e Employee at his prison disciplinary hearing," and Petitioner's third g ro u n d for relief that "Petitioner was denied his due process rights when prison officials failed to allow Petitioner to raise facts on appeal through the Inmate Appeals Process." (Answer, Ex. 4 at 4-5, Doc. # 17-3 (incorporated by reference in Petition for Writ of Habeas Corpus at 6, D o c . # 5); see also Order Denying Petition for Writ of Habeas Corpus at 9-12, Doc. # 27). IT IS HEREBY ORDERED that a Certificate of Appealability is GRANTED. D A T E D : June 11, 2010 W I L L I A M Q. HAYES U n ite d States District Judge -2- 1:07cv749-WQH-WMc

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