Shorty v. Sisto et al

Filing 24

ORDER signed by Judge Frank C. Damrell, Jr on 6/30/11 ORDERING that Petitioner's request for a certificate of appealability is DENIED. (Becknal, R)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MACK NELSON SHORTY,
Petitioner,

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No. CIV S-08-CV-1418 FCD CHS P

Respondent.

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ORDER

vs.
D.K. SISTO,

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Petitioner, Mack Nelson Shorty, is a state prisoner proceeding pro se with a petition

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for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner is currently serving an

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indeterminate sentence of twenty years to life following his 1985 jury conviction for attempted

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murder causing great bodily injury and a penalty enhancement for being a habitual offender. With

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his petition, Petitioner does not challenge the constitutionality of that conviction, but rather, the

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execution of his sentence and, specifically, the December 19, 2006 decision by the Board of Parole

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Hearings finding him unsuitable for parole.

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On April 19, 2011, judgment in this case became final after the United States District

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Court Judge adopted in full the findings and recommendations filed by the United States Magistrate

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Judge. Petitioner now wishes to appeal the judgment of the court, and requests a certificate of
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appealability. See 28 U.S.C. § 2253(c); Fed. R. App. P. 22(b). A certificate of appealability may

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issue under 28 U.S.C. § 2253 “if the applicant has made a substantial showing of the denial of a

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constitutional right.” 28 U.S.C. § 2253(c)(2). The certificate of appealability must “indicate which

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specific issue or issues satisfy” the requirement. 28 U.S.C. 2253(c)(3). A certificate of appealability

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should be granted for any issue that Petitioner can demonstrate is “‘debatable among jurists of

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reason,’” could be resolved differently by a different court, or is “‘adequate to deserve

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encouragement to proceed further.’” Jennings v. Woodford, 2990 F.3d 1006, 1010 (9th Cir. 2002)

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(quoting Barefood v. Estelle, 463 U.S. 880, 893 (1983)).1 In this case, Petitioner has failed to make

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a substantial showing with respect to any of the claims presented.

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Accordingly, IT IS HEREBY ORDERED that:

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Petitioner’s request for a certificate of appealability is DENIED.

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DATED: June 30, 2011.

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_______________________________________
FRANK C. DAMRELL, JR.
UNITED STATES DISTRICT JUDGE

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Except for the requirement that appealable issues be specifically identified, the standard
for a certificate of appealability is the same as the standard applied to issuance of a certificate of
probable cause. Jennings, 290 F.3d at 1010.
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