Walker v. Curry

Filing 19

ORDER, Certificate of Appealability Denied. Signed by Judge William Alsup on 11/10/10. (Attachments: # 1 Certificate of Service)(dt, COURT STAFF) (Filed on 11/10/2010)

Walker v. Curry

Doc. 19

1 2 3 4 5 6 7 8 9 10 WILLIAM LEE WALKER, Petitioner, v. B. CURRY, Warden, Respondent. / No. C 07-0147 WHA (PR) ORDER DENYING CERTIFICATE OF APPEALABILITY IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

United States District Court

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For the Northern District of California

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This is a habeas corpus case filed by a state prisoner pursuant to 28 U.S.C. 2254. The Petition is directed to a parole denial. The petition was denied on its merits in an order dated October 14, 2008. Judgment was entered that day. On November 13, 2008, petitioner filed a notice of appeal, requesting a certificate of appealability ("COA"). See 28 U.S.C. § 2253(c); Fed. R. App. P. 22(b). The Clerk processed the appeal without a ruling on the request for a COA because at that time, a prisoner did not have to obtain a certificate of appealability in order to appeal the denial of a habeas petition challenging the denial of parole. See White v. Lambert, 370 F.3d 1002, 1004 (9th Cir. 2004); Rosas v. Nielsen, 428 F.3d 1229, 1231-32 (9th Cir. 2005) (per curiam). On April 22, 2010, the Ninth Circuit overruled White and Rosas on that point, and held that a prisoner must obtain a COA. See Hayward v. Marshall, 603 F.3d 546, 554 (9th Cir. 2010) (en banc). On September 24, 2010, pursuant to Hayward, the Ninth Circuit remanded the case for the limited purpose of a decision on whether to grant or deny a COA.

Dockets.Justia.com

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A judge shall grant a certificate of appealability "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 must indicate which issues satisfy this standard. See id. § 2253(c)(3). "Where a district court has rejected the constitutional claims on the merits, the showing required to satisfy § 2253(c) is straightforward: the petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Slack v. McDaniel, 120 S.Ct. 1595, 1604 (2000). For the reasons set out in the ruling on the petition, jurists of reason would not find debatable or wrong that the denial of parole violated neither his right to due process nor his right to equal protection. Petitioner's request for a certificate of appealability is DENIED. The clerk shall transmit the file, including a copy of this order, to the Ninth Circuit. See Fed. R. App. P. 22(b); United States v. Asrar, 116 F.3d 1268, 1270 (9th Cir. 1997). Petitioner may then ask the Ninth Circuit to issue the certificate, see R.App.P. 22(b)(1), or if he does not, the notice of appeal will be construed as such a request, see R.App.P. 22(b)(2). The Clerk shall close the file. IT IS SO ORDERED. Dated: November 10 , 2010.

United States District Court

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For the Northern District of California

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WILLIAM ALSUP UNITED STATES DISTRICT JUDGE

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