Christian v. Curry

Filing 15

ORDER DENYING CERTIFICATE OF APPEALABILITY; DIRECTIONS TO CLERK. Signed by Judge Maxine M. Chesney on June 28, 2010. (mmcsec, COURT STAFF) (Filed on 6/28/2010)

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

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA DEAN A. CHRISTIAN, ) ) Petitioner, ) ) v. ) ) BEN CURRY, Warden, ) ) Respondent. ) ______________________________ ) No. C 07-1082 MMC (PR) Ninth Circuit Case No. 10-15410 ORDER DENYING CERTIFICATE OF APPEALABILITY; DIRECTIONS TO CLERK

On February 22, 2007, petitioner, a California prisoner proceeding pro se, filed the above-titled petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging a Board of Prison Terms' ("Board") decision finding him unsuitable for parole. The Court, by order filed December 28, 2009, denied the petition on the merits. Judgment was entered that same date. On January 28, 2010, petitioner filed a notice of appeal. At that time, Ninth Circuit case law held that a certificate of appealability ("COA") was not required for a prisoner to obtain review of a denial of a habeas petition challenging the Board's denial of parole. See Rosas v. Nielsen, 428 F.3d 1229, 1231-32 (9th Cir. 2005) (per curiam); White v. Lambert,

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

370 F.3d 1002, 1004 (9th Cir. 2004). Consequently, the Clerk processed the appeal herein without a ruling on whether a COA should issue. On April 22, 2010, the Ninth Circuit overruled those portions of Rosas and White that relieved a prisoner of the obligation to obtain a COA as a precondition for review of the denial of a habeas petition challenging an administrative decision denying parole. See Hayward v. Marshall, 603 F.3d 546, 554 (9th Cir. 2010) (en banc); see also 28 U.S.C. § 2253(c); Fed. R. App. P. 22(b). On June 17, 2010, the Ninth Circuit, pursuant to the Hayward decision, remanded the instant action to this Court, for the limited purpose of deciding whether a COA should be granted. The Court next addresses that issue. A judge shall grant a COA "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 identify the particular issues that satisfy such standard. See id. § 2253(c)(3); United States v. Asrar, 116 F.3d 1268, 1270 (9th Cir. 1997). If the request to issue a certificate is declined, the court must state the reasons why the certificate should not be granted. Id. "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, 529 U.S. 473, 484 (2000). In denying the instant petition, the Court found the state court's decision rejecting petitioner's claims, specifically, his claims that (1) the evidence was insufficient to deny parole, and (2) the denial of parole violated due process because it was inconsistent with the California Department of Corrections and Rehabilitation's decision to house petitioner in a facility for non-violent offenders, was neither contrary to nor an unreasonable application of clearly established Supreme Court precedent, nor was such decision based on an unreasonable determination of the facts. (Order, filed Dec. 28, 2009, at 5:20-9:7. ) For the same reasons stated by the Court in so ruling, the Court concludes the instant action is not a case in which reasonable jurists would find the Court's assessment of the constitutional claims debatable or wrong.
2

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

Accordingly, a COA is hereby DENIED. The Clerk shall forward a copy of this order to the Ninth Circuit Court of Appeals, and shall close the file. IT IS SO ORDERED. DATED: June 28, 2010 _________________________ MAXINE M. CHESNEY United States District Judge

3