Turk v. Board of Parole Hearings et al

Filing 27

ORDER signed by Judge Frank C. Damrell, Jr on 6/15/10 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 1 / Petitioner, a state prisoner proceeding pro se, challenged the execution of his sentence in an application for writ of habeas corpus which was denied by this court on November 4, 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 11, 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). In relevant part, the Hayward decision overruled portions of earlier Ninth Circuit cases which relieved a prisoner from vs. CALIFORNIA BOARD OF PAROLE HEARINGS, Respondent. ORDER ALLEN R. TURK, Petitioner, No. CIV S-07-1082 FCD CHS P IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

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

obtaining a certificate of appealability to appeal the denial of a habeas petition challenging an administrative decision to deny parole. 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, the decision of the Board of Parole Hearings that petitioner was not suitable for parole was clearly supported by some evidence in the record. Petitioner failed to make a substantial showing in his petition of the denial of a constitutional right. Accordingly, a certificate of appealability shall not issue in this case. IT IS SO ORDERED. DATED: June 15,2010.
_______________________________________ FRANK C. DAMRELL, 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