Vickers v. Hill

Filing 34

ORDER signed by District Judge John A. Mendez on 5/26/17 ORDERING that a certificate of appealability is ISSUED in the present action. (Kastilahn, A)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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TARRANCE VICKERS,

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No. 2:14-cv-01425 JAM DB

Petitioner,
v.
RICK HILL,

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ORDER
Respondent.

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Petitioner, a state prisoner proceeding pro se, has timely filed a notice of appeal of this

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court's March 27, 2017 dismissal of his application for a writ of habeas corpus. Before petitioner

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can appeal this decision, a certificate of appealability must issue. 28 U.S.C. § 2253(c); Fed. R.

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App. P. 22(b).

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A certificate of appealability may issue under 28 U.S.C. § 2253 “only if the applicant has

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made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). The

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certificate of appealability must “indicate which specific issue or issues satisfy” the requirement.

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28 U.S.C. § 2253(c)(3).

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A certificate of appealability should be granted for any issue that petitioner can

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demonstrate is “‘debatable among jurists of reason,’” could be resolved differently by a different

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court, or is “‘adequate to deserve encouragement to proceed further.’” Jennings v. Woodford,

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290 F.3d 1006, 1010 (9th Cir. 2002) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 (1983)).
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Petitioner has made a substantial showing of the denial of a constitutional right in the
following issue(s) presented in the instant petition:
Whether a prisoner retains a liberty interest in good time credits that have been lost but are
still capable of restoration.

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As the court noted in the adopted findings and recommendations, this question has not

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been addressed by the Ninth Circuit or the Supreme Court. (ECF No. 25 at 5 n. 1). A district

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judge in the Eastern District of California addressed this question in Reed v. Knipp, No. CIV-S-

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11-2753 KJM KJN, 2012 WL 6570906 (E.D. Cal. Dec. 17, 2012), reaching the same conclusion

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as this court; however, the Reed opinion was not appealed. Furthermore, as also noted in the

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findings and recommendations, the California Attorney General has taken diametrically opposing

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positions on this question in different cases.

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Specifically, in In re Gomez, 246 Cal. App. 4th 1082, 1093 (2016), a state court habeas

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matter, the state argued that a prisoner could not challenge the loss of good time credits still

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capable of restoration, because (as paraphrased by the court) the prisoner “has not really lost any

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credits, and cannot allege that he has suffered any deprivation of liberty that warrants due process

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scrutiny.” Under this interpretation, a prisoner cannot challenge the loss of good time credits

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until the possibility of restoration is extinguished -- thus, according to the logic of the state’s

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argument in Gomez, the action that terminated the possibility of restoration would be the event

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that triggers a loss of a liberty interest. This is contrary to the argument respondent made in this

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case, as well as contrary to the conclusion the court reached. In light of this, the undersigned

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finds that petitioner has made a substantial showing of the denial of a constitutional right

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concerning this issue.

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Accordingly, IT IS HEREBY ORDERED that a certificate of appealability is issued in the

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present action.

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DATED: May 26, 2017

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/s/ John A. Mendez_______________________
UNITED STATES DISTRICT COURT JUDGE

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