Thrasher v. Ylst

Filing 21

ORDER, ***Civil Case Terminated.. Signed by Judge ARMSTRONG on 7/1/10. (lrc, COURT STAFF) (Filed on 7/2/2010)

Thrasher v. Ayers

Doc. 21

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

ERIC LA VON THRASHER, Petitioner,

No. C 05-01840 SBA (PR) ORDER DENYING REQUEST FOR CERTIFICATE OF APPEALABILITY

ROBERT AYERS, Warden, Respondent. /

This is a habeas corpus case filed by a state prisoner pursuant to 28 U.S.C. 2254 in which he challenges the denial of parole. In an Order dated December 10, 2007, the petition was denied on its merits. Judgment was entered that day. On January 11, 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). In an Order dated January 15, 2008, the Court denied the request for a COA as unnecessary because at that time, a prisoner did not have to obtain a COA 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 Court of Appeals overruled White and Rosas on that point, and held that a prisoner must obtain a COA. See Hayward v. Marshall, No. 06-55392, 2010 WL 1664977, at *5 (9th Cir. Apr. 22, 2010) (en banc). On June 22, 2010, pursuant to Hayward, the Ninth Circuit remanded the present case for the limited purpose of a decision on whether to grant or deny a COA. Therefore, the case was reopened for this limited purpose. 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 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

Dockets.Justia.com

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claims debatable or wrong." Slack v. McDaniel, 529 U.S. 473, 484 (2000). For the reasons set out in the ruling on the petition, jurists of reason would not find the result debatable or wrong. Accordingly, Petitioner's request for a COA is DENIED. The Clerk of the Court 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 terminate all pending motions and close the file. IT IS SO ORDERED. DATED: 7/1/10 _______________________________ SAUNDRA BROWN ARMSTRONG United States District Judge

UNITED STATES DISTRICT COURT G:\PRO-SE\SBA\HC.05\Thrasher1840.post-Hayward-COA.wpd 2

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FOR THE NORTHERN DISTRICT OF CALIFORNIA THRASHER, Plaintiff, v. BROWN et al, Defendant. /

Case Number: CV05-01840 SBA 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 July 2, 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.

Eric La Von Thrasher B-37948 San Quentin State Prison San Quentin, CA 94964 Dated: July 2, 2010

Richard W. Wieking, Clerk By: LISA R CLARK, Deputy Clerk

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