Stuart v. Carey, et al

Filing 50

ORDER signed by Judge Morrison C. England, Jr on 8/27/2010 re 43 Notice of Appeal filed by Wendell Stuart ORDERING that a certificate of appealability is ISSUED in the present action. (Waggoner, D)

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(HC) Stuart v. Carey, et al Doc. 50 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 vs. T. CAREY, Warden, et al., Respondents. / This matter has been remanded to this court from the United States Court of Appeals for the Ninth Circuit for the limited purpose of granting or denying a certificate of appealability. See 28 U.S.C. 2253(c); Fed. R. App. P. 22(b). A certificate of appealability may issue under 28 U.S.C. 2253 "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. 2253(c)(2). The certificate of appealability must "indicate which specific issue or issues satisfy" the requirement. 28 U.S.C. 2253(c)(3). /// /// /// 1 Dockets.Justia.com IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA WENDELL STUART, Petitioner, No. 2:03-cv-00128-MCE-JFM (HC) ORDER 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 A certificate of appealability should be granted for any issue that petitioner can demonstrate is "`debatable among jurists of reason,'" could be resolved differently by a different court, or is "`adequate to deserve encouragement to proceed further.'" Jennings v. Woodford, 290 F.3d 1006, 1010 (9th Cir. 2002) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 (1983)).1 Petitioner has made a substantial showing of the denial of a constitutional right in the following issue presented in the instant petition: Whether petitioner's right to due process was violated by the California Board of Prison Terms' June 26, 2001 decision to deny him a parole date. Accordingly, IT IS HEREBY ORDERED that a certificate of appealability is issued in the present action. Dated: August 27, 2010 ________________________________ MORRISON C. ENGLAND, JR. UNITED STATES DISTRICT JUDGE Except for the requirement that appealable issues be specifically identified, the standard for issuance of a certificate of appealability is the same as the standard that applied to issuance of a certificate of probable cause. Jennings, at 1010. 2 1

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