Benson v. Sisto et al

Filing 30

ORDER signed by Senior Judge James K. Singleton on 11/1/2011 VACATING 20 Judgment; DENYING 1 Petition for Writ of habeas Corpus. The Court declines to issue a Certificate of Appealability. CASE CLOSED. (Michel, G)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
FRANK KENNETH BENSON,
No. 2:07-cv-02244-JKS
Petitioner,
vs.

ORDER DENYING THE PETITION
ON REMAND

D. K. SISTO, Warden, California State
Prison, Solano,
Respondent.

Frank Kenneth Benson filed a Petition for Habeas Corpus under 28 U.S.C. § 2254. This
Court granted the Writ in a Memorandum Decision,1 and entered Judgment accordingly.2 On
appeal the Court of Appeals, citing the intervening decision in Swarthout v. Cooke, 131 S. Ct.
859, 863 (2011) (per curiam), vacated this Court’s Judgment and remanded the matter.3 Because
Benson has failed to raise any issue of constitutional dimension, he is not entitled to relief.
IT IS THEREFORE ORDERED THAT the Judgment herein entered on August 12,
2011, at Docket No. 20 is hereby VACATED, and the Petition under 28 U.S.C. § 2254 for Writ
of Habeas Corpus is DENIED.

1

Benson v. Sisto, 2010 WL 3211891 (E.D. Cal. Aug. 12, 2010)

2

Docket No. 20.

3

Benson v. Sisto, No. 10-16945, 2011 WL 4588827 (9th Cir. Oct. 5, 2011).

IT IS FURTHER ORDERED THAT the Court declines to issue a Certificate of
Appealability.4 Any further request for a Certificate of Appealability must be addressed to the
Court of Appeals.5
The Clerk of the Court is to enter judgment accordingly.
Dated: November 1, 2011.
/s/ James K. Singleton, Jr.
JAMES K. SINGLETON, JR.
United States District Judge

4

28 U.S.C. § 2253(c); Banks v. Dretke, 540 U.S. 668, 705 (2004) (“To obtain a certificate
of appealability a prisoner must ‘demonstrat[e] that 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.’” (quoting Miller-El v.
Cockrell, 537 U.S. 322, 327 (2003))).
5

See Fed. R. App. P. 22(b); Ninth Circuit R. 22-1.
2