Dun v. Campbell

Filing 40

ORDER signed by Judge William B. Shubb on 6/23/10 ORDERING a Certificate of Appealability SHALL NOT ISSUE in this case. (Carlos, K)

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 / Petitioner, a state prisoner proceeding through counsel, challenged the execution of his sentence in an application for writ of habeas corpus which was denied by this court in an order dated October 2, 2009. Petitioner filed a timely notice of appeal and his appeal was processed to the United States Court of Appeals for the Ninth Circuit. On June 15, 2010, the case was remanded to this court for the limited purpose of granting or denying a certificate of appealability in light of Hayward v. Marshall, No. 06-55392, 2010 WL 1664977, at *5 (9th Cir. Apr. 22, 2010) (en banc) (overruling portions of earlier cases that relieved a prisoner from obtaining a certificate of appealability to review the denial of a habeas petition challenging an administrative decision to deny parole). ///// 1 vs. ROSANNE CAMPBELL, et al., Respondent. ORDER LARRY DUN, Petitioner, No. CIV S-05-2092 WBS CHS P IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

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A certificate of appealability may issue under 28 U.S.C. § 2253 "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). 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 Here, for the reasons set forth in the magistrate judge's findings and recommendations filed July 31, 2009, petitioner failed to make a substantial showing of the denial of a constitutional right. Accordingly, a certificate of appealability shall not issue in this case. IT IS SO ORDERED. DATED: June 23, 2010

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

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