Liebb v. Brown

Filing 65

Granting, in part, Certificate of Appealability re 56 Notice of Appeal. Signed by Judge Claudia Wilken on May 28, 2010. (cwlc1, COURT STAFF) (Filed on 5/28/2010)

1 2 3 4 5 6 7 8 9 10 United 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 Petitioner filed a habeas corpus petition pursuant to 28 U.S.C. § 2254, challenging as a violation of his due process rights a denial of parole by the California Board of Parole Hearings (Board). petition. On May 12, 2008, the Court entered judgment denying the Petitioner has appealed and the Ninth Circuit has v. VINCE CULLEN, Acting Warden, Respondent. / STEPHEN LIEBB, Petitioner, IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA No. 04-04213 CW ORDER GRANTING, IN PART, CERTIFICATE OF APPEALABILITY

remanded for this Court to determine whether to issue a certificate of appealability. A habeas petitioner may not appeal a final order in a federal habeas proceeding without first obtaining a certificate of appealability (formerly known as a "certificate of probable cause to appeal"). 28 U.S.C. § 2253(c); Fed. R. App. P. 22(b); Hayward

v. Marshall, 2010 WL 1664977, at *5 (9th Cir. Apr. 22, 2010) (en banc) (holding certificate of appealability required in habeas cases challenging denial of parole). A certificate of

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

appealability should be granted "only if the applicant has made a substantial showing of the denial of a constitutional right." U.S.C. § 2253(c)(2). The certificate of appealability must 28

indicate which issue or issues satisfy the showing required by § 2253(c)(2). 28 U.S.C. § 2253(c)(3).

The Court finds that Petitioner has made a sufficient showing of the denial of a constitutional right in regard to the claim that his due process rights were violated by the denial of parole by the Board but has not made such a showing in regard to his due process claim based on the sentencing matrix. The Court notes that it

granted Petitioner's petition for writ of habeas corpus addressing a later denial of parole by the Board in case number C 08-2643 CW. The judgment granting the petition has been appealed by Respondent. CONCLUSION Accordingly, the Court grants, in part, a certificate of appealability to Petitioner.

IT IS SO ORDERED.

Dated: May 28, 2010

CLAUDIA WILKEN United States District Judge

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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 Stephen Liebb C-60825 San Quentin State Prison San Quentin, CA 94974 Dated: May 28, 2010 LIEBB, Plaintiff, v. BROWN et al, Defendant.

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

Case Number: CV04-04213 CW CERTIFICATE OF SERVICE

/

I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California. That on May 28, 2010, I SERVED a true and correct copy(ies) of the attached, by placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle located in the Clerk's office.

Richard W. Winking, Clerk By: Ronnie Hersler, Administrative Law Clerk

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