Vickers v. Hill
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)
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
No. 2:14-cv-01425 JAM DB
Petitioner, a state prisoner proceeding pro se, has timely filed a notice of appeal of this
court's March 27, 2017 dismissal of his application for a writ of habeas corpus. 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 28 U.S.C. § 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.
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)).
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.
As the court noted in the adopted findings and recommendations, this question has not
been addressed by the Ninth Circuit or the Supreme Court. (ECF No. 25 at 5 n. 1). A district
judge in the Eastern District of California addressed this question in Reed v. Knipp, No. CIV-S-
11-2753 KJM KJN, 2012 WL 6570906 (E.D. Cal. Dec. 17, 2012), reaching the same conclusion
as this court; however, the Reed opinion was not appealed. Furthermore, as also noted in the
findings and recommendations, the California Attorney General has taken diametrically opposing
positions on this question in different cases.
Specifically, in In re Gomez, 246 Cal. App. 4th 1082, 1093 (2016), a state court habeas
matter, the state argued that a prisoner could not challenge the loss of good time credits still
capable of restoration, because (as paraphrased by the court) the prisoner “has not really lost any
credits, and cannot allege that he has suffered any deprivation of liberty that warrants due process
scrutiny.” Under this interpretation, a prisoner cannot challenge the loss of good time credits
until the possibility of restoration is extinguished -- thus, according to the logic of the state’s
argument in Gomez, the action that terminated the possibility of restoration would be the event
that triggers a loss of a liberty interest. This is contrary to the argument respondent made in this
case, as well as contrary to the conclusion the court reached. In light of this, the undersigned
finds that petitioner has made a substantial showing of the denial of a constitutional right
concerning this issue.
Accordingly, IT IS HEREBY ORDERED that a certificate of appealability is issued in the
DATED: May 26, 2017
/s/ John A. Mendez_______________________
UNITED STATES DISTRICT COURT JUDGE
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