Pritchett Jr. v. Board of Parole Hearings

Filing 35

Granting, in part, Certificate of Appealability re 16 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, alleging as a violation of his due process rights a denial of parole by the California Board of Parole Hearings (Board) and two other claims. On March, 19 2008, the Court entered Petitioner has appealed and the v. JAMES DAVIS, Chairman, Board of Parole Hearings, Respondent. / IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA CALVIN D. PRITCHETT, JR, Petitioner, No. 06-2208 CW ORDER GRANTING, IN PART, CERTIFICATE OF APPEALABILITY

judgment denying the petition.

Ninth Circuit has 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

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

cases challenging denial of parole).

A certificate of

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. Petitioner has not made a showing of the denial of a

constitutional right regarding the two other claims he alleged. 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

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA CALVIN D. PRITCHETT JR., Plaintiff, v. BOARD OF PAROLE HEARINGS et al, Defendant. /

Case Number: CV06-02208 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.

Calvin D Pritchett Jr. H56017 PO Box 689 B-237-U Soledad, CA 93960-0689 Dated: May 28, 2010 Richard W. Winking, Clerk By: Ronnie Hersler, Administrative Law Clerk

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