Thompson v. Sisto

Filing 21

ORDER signed by Judge William B. Shubb on 04/13/10 ORDERING that a Certificate of Appealability should issue in this case. (Williams, D)

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 27 28 v. D. K. SISTO, Respondent. FRANK THOMPSON, Petitioner, UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA ----oo0oo----

NO. CIV. 2:07-2577 WBS JFM (HC) ORDER ISSUING A CERTIFICATE OF APPEALABILITY

/ ----oo0oo----

In an Order filed April 12, 2010, this court denied petitioner Frank Thompson's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 et seq. Before petitioner can

appeal this decision, a certificate of appealability must issue. 28 U.S.C. § 2253(c); Fed. R. App. P. 22(b). A certificate of appealability may issue under § 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. 1 Id. § 2253(c)(3).

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 27 28 DATED:

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)). In light of the differing conclusions reached by the undersigned and the assigned Magistrate Judge, "jurists of reason" could reach different conclusions with respect to the merits of petitioner's petition. The court therefore issues a certificate of appealability on the issue of whether the state court unreasonably concluded that the parole board's decision satisfied the "some evidence" standard because the parole board's reliance on the nature of petitioner's offenses violated his due process rights as warned against in Biggs v. Terhune, 334 F.3d 910 (9th Cir. 2003), Sass v. Cal. Bd. of Prison Terms, 461 F.3d 1123, 1128-29 (9th Cir. 2006), and Irons II v. Carey, 505 F.3d 846, 850 (9th Cir. 2007). IT IS SO ORDERED. April 13, 2010

2