Dana v. Schwartz

Filing 45

ORDER signed by Senior Judge Lawrence K. Karlton on 7/2/2010 ORDERING that the Court DECLINES to issue a certificate of appealability. (Zignago, K.)

(HC) Dana v. Schwartz

Doc. 45

1 2 3 4 5 6 7 8 9 10 11 Petitioner, 12 v. 13 TERESA A. SCHWARTZ, Warden, 14 15 16 17 18 19 20 21 22 23 24 25 26 Respondent. / Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus. This petition challenges the ORDER ROBERT DANA, NO. CIV. S-05-1480 LKK/DAD P UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

March 10, 2004 decision of the California Board of Prison Terms (now the California Board of Parole Hearings) finding petitioner unsuitable for parole. On August 17, 2009, the magistrate judge

filed findings and recommendations recommending that this petition be denied. This court adopted those findings and recommendations

in full on September 29, 2009. Petitioner has since filed an appeal. recently held that appeal of 1
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The Ninth Circuit a habeas petition

denial

of

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

challenging

a

parole

decision

required

a

certificate

of

appealability. Hayward v. Marshall, 603 F.3d 546, 554-55 (9th Cir. 2010) (en banc). "Where a district court has rejected the constitutional claims on the merits, the showing required to satisfy [28 U.S.C.] § 2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." 529 U.S. 473, 484 (2000). Slack v. McDaniel,

In this case, the magistrate judge's

findings and recommendations, which this court adopted in full, concluded that petitioner's lack of realistic parole plans,

psychiatric reports indicating a high risk of substance abuse relapse, and the circumstances of his conviction provide some evidence of future dangerousness for purposes of federal habeas review. Although reasonable jurists may disagree about the

appropriateness of reliance on the circumstances of the conviction offense and about federal court's ability to review such reliance in habeas, it does not appear that reasonable jurists would disagree that the totality of evidence exceeded the some evidence threshold. Nor could reasonable jurists disagree with the court's

ex post facto analysis. Accordingly, the court DECLINES to issue a certificate of appealability. IT IS SO ORDERED. DATED: July 2, 2010.

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