Piltz v. California Parole Board Commissioners et al

Filing 19

ORDER, ***Civil Case Terminated.. Signed by Judge ARMSTRONG on 6/1/10. (lrc, COURT STAFF) (Filed on 6/2/2010)

1 2 3 4 5 6 7 8 9 10 LESLIE PLITZ,

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA ) No. C 07-02175 SBA (PR) ) Petitioner, ) ORDER DENYING PETITION FOR ) WRIT OF HABEAS CORPUS v. ) ) CALIFORNIA PAROLE BOARD ) COMMISSIONER, ) ) Respondent. ) ) __________________________________________ ) Petitioner Leslie Plitz, an inmate at the Correctional Training Facility in Soledad, California, filed this pro se petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, in which he challenges the denial of parole by the California Board of Parole Hearings. The petition was denied on its merits in an order dated March 10, 2010. Judgment was entered that day. On March 22, 2010, petitioner filed a notice of appeal. See 28 U.S.C. § 2253(c); Fed. R. App. P. 22(b). The Clerk processed the appeal without a ruling on whether a certificate of appealability ("COA") should issue 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 overruled White and Rosas on that point, and now a COA is necessary for an appeal in such cases. Hayward v. Marshall, No. 06- 55392, 2010 WL 1664977, at *5 (9th Cir. Apr. 22, 2010) (en banc). On May 12, 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. 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. 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

United States District Court

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For the Northern District of California

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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 same reasons set out in the ruling on the petition, the state court decisions upholding the denial of parole were neither "an `unreasonable application of the California `some evidence' requirement," nor were they "`based on an unreasonable determination of the facts in light of the evidence.'" Hayward, 2010 WL 1664977 at *11 (quoting 28 U.S.C. 2254(d)) (footnote omitted). Jurists of reason would not find the Court's resolution of the constitutional claims in this case debatable or wrong. Petitioner's request for a certificate of appealability is DENIED. The clerk shall close the file, and transmit it, 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). IT IS SO ORDERED. DATED: 6-1-10 _______________________________ SAUNDRA BROWN ARMSTRONG United States District Judge

United States District Court

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For the Northern District of California

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UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA LESLIE PILTZ, Plaintiff, v. CALIFORNIA PAROLE BOARD COMMISSIONER et al, Defendant. /

Case Number: CV07-02175 SBA CERTIFICATE OF SERVICE

United States District Court

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For the Northern District of California

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 June 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.

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Leslie Piltz D58060 Correctional Training Facility P.O. Box 689 Soledad, CA 93960-0689 Dated: June 2, 2010 Richard W. Wieking, Clerk By: LISA R CLARK, Deputy Clerk

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