Escarcega v. Kane

Filing 23

ORDER DENYING CERTIFICATE OF APPEALABILITY: The order dismissing the request for a certificate of appealability as unneceessary (docket #19) is VACATED and replaced with this order. (cc: USCA) (SI, COURT STAFF) (Filed on 6/16/2010)

1 2 3 4 5 6 7 8 9 10 11 12 13 United States District Court For the Northern District of California 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

RAUL ESCARCEGA, Petitioner, v. BEN CURRY, warden, Respondent. /

No. C 06-3693 SI (pr) ORDER DENYING CERTIFICATE OF APPEALABILITY

Petitioner has filed a notice of appeal from the order denying his petition for writ of habeas corpus that challenged a parole denial decision. The court earlier dismissed his request for a certificate of appealability as unnecessary under then-controlling Ninth Circuit authority. Later, the law changed. Under the recent decision of Hayward v. Marshall, 603 F.3d 546, 554 (9th Cir. 2010), a petitioner must obtain a certificate of appealability to appeal such a decision. The order dismissing the request for a certificate of appealability as unnecessary (docket # 19) is VACATED and replaced with this order. A certificate of appealability will not issue because petitioner has not made "a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). This is not a case in which "reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Slack v. McDaniel, 529 U.S. 473, 484 (2000). IT IS SO ORDERED. DATED: June 16, 2010 SUSAN ILLSTON United States District Judge