Sisco v. James D. Hartley

Filing 26

ORDER GRANTING In Part Petitioner's 23 Request For Certificate of Appealability, signed by District Judge Lawrence J. O'Neill on 12/16/2010. (Marrujo, C)

(HC) Sisco v. James D. Hartley

Doc. 26

1 2 3 4 5 LEE SISCO, 6 Petitioner, 7 8 v. 9 10 JAMES D. HARTLEY, 11 Respondent. 12 13 Petitioner Lee Sisco ("Petitioner") is a state prisoner proceeding pro se with a petition for 14 writ of habeas corpus pursuant to 28 U.S.C. § 2254. On September 16, 2010, the Magistrate Judge 15 issued a Findings and Recommendation ("F&R") that recommended the petition be granted. See 16 Doc. No. 16. On November 23, 2010, the Court declined to adopt the F&R and denied Petitioner's 17 writ of habeas corpus. See Doc. No. 20. On December 9, 2010, Petitioner filed a request for a 18 certificate of appealability. See Doc. No. 23. Petitioner advances two issues that he would like to 19 raise on appeal: 20 21 22 23 24 25 26 27 28
U . S . D is t r ic t C o u r t E. D . C a lifo r n ia

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA ) ) ) ) ) ) ) ) ) ) ) ) ) ) No. 1:09-CV-1612 LJO JMD (HC) ORDER GRANTING IN PART PETITIONER'S REQUEST FOR CERTIFICATE OF APPEALABILITY [Doc. #23]

(1) When the Board of Parole Hearings's denial of parole was based on Mr. Sisco's invocation of his right to not discuss his crime, did the district court err in holding that the Board's decision was supported by some evidence of current dangerousness when considered in light of the full record and thus was constitutional? (2) Where the Board is legally prohibited from requiring a prisoner to discuss his or her crime with the Board's commissioner's, may the Board nevertheless require the prisoner to discuss the offense with its other agents? See Doc. No. 23 at 2. A state prisoner seeking a writ of habeas corpus has no absolute entitlement to appeal a district court's denial of his petition, and an appeal is only allowed in certain circumstances. MillerEl v. Cockrell, 537 U.S. 322, 336 (2003). The controlling statute in determining whether to issue a 1
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U . S . D is t r ic t C o u r t E. D . C a lifo r n ia

certificate of appealability is 28 U.S.C. § 2253, which provides that a circuit judge or judge may issue a certificate of appealability where "the applicant has made a substantial showing of the denial of a constitutional right." Where the court denies a habeas petition, the court may only issue a certificate of appealability "if jurists of reason could disagree with the district court's resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further." Miller-El, 537 U.S. at 326; Slack v. McDaniel, 529 U.S. 473, 484 (2000). While the petitioner is not required to prove the merits of his case, he must demonstrate "something more than the absence of frivolity or the existence of mere good faith on his . . . part." Miller-El, 537 U.S. at 338. In the present case, the Court finds that with respect to the first issue, Petitioner has misstated the Board's decision as the Board's denial of parole was not based on Petitioner's refusal to discuss the commitment offense. The Board concluded that Petitioner would pose an unreasonable risk of danger to society if released because of Petitioner's commitment offense, which was carried out in an especially cruel and callous manner, and because Petitioner's 2006 psychological evaulation was not totally supportive of release as it stated that Petitioner had not fully accepted responsibility for his life crime. See Transcript at 64-67. Because Petitioner has misstated the Board's decision, reasonable jurists would not find the Court's determination that Petitioner is not entitled to federal habeas corpus relief debatable, wrong, or deserving of encouragement to proceed further. See Miller-El, 537 U.S. at 326. Therefore, the Court denies Petitioner's request for a certificate of appealability as to the first issue. With respect to the second issue, the Court reasonably construes it to mean that Petitioner is challenging whether a psychological evaluation, which concludes that a prisoner lacks sufficient insight based solely on the Petitioner's refusal to discuss the crime with the prison psychologist, constitutes "some evidence" of current dangerousness. As to the second issue, reasonable jurists could find the Court's determination that Petitioner is not entitled to federal habeas corpus relief debatable. Accordingly, the Court hereby GRANTS a certificate of appealability as to the second issue.

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U . S . D is t r ic t C o u r t E. D . C a lifo r n ia

ORDER IT IS HEREBY ORDERED that: 1. 2. Petitioner's request for a certificate of appealability on the first issue is DENIED; and Petitioner's request for a certificate of appealability on the question of whether a psychological evaluation, which concludes that a prisoner lacks sufficient insight based solely on the prisoner's refusal to discuss the crime with the prison psychologist, constitutes "some evidence" of current dangerousness, is GRANTED.

IT IS SO ORDERED. Dated: b9ed48 December 16, 2010 /s/ Lawrence J. O'Neill UNITED STATES DISTRICT JUDGE

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