Marroquin v. Curry

Filing 18

ORDER GRANTING CERTIFICATE OF APPEALABILITY. Signed by Judge Phyllis J. Hamilton on 10/26/10. (Attachments: # 1 Certificate of Service)(nah, COURT STAFF) (Filed on 10/26/2010)

Marroquin v. Curry

Doc. 18

1 2 3 4 5 6 7 8 9 10 vs. BEN CURRY, Warden, Respondent. / MARCO MARROQUIN, Petitioner, No. C 08-3153 PJH (PR) ORDER GRANTING CERTIFICATE OF APPEALABILITY UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA OAKLAND DIVISION

United United States District Court

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For the Northern District of California

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This is a habeas case under 28 U.S.C. § 2254 filed pro se by a state prisoner. The petition was directed to a denial of parole. The petition is denied in a contemporaneous order. A federal district court that denied a section 2254 habeas petition must grant or deny a certificate of appealability at the time of the denial. See Rule 11(a), Rules Governing § 2254 Cases, 28 U.S.C. foll. § 2254. 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. 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 claims debatable or wrong." Slack v. McDaniel, 529 U.S. 473, 484 (2000). Petitioner's claims were that (1) his equal protection rights were violated when the State afforded more lenient treatment to a Swedish national than to him; (2) the Board's use of the "some evidence" standard violated his due process rights; and (3) there was not "some evidence" to support the decision.

Dockets.Justia.com

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A certificate of appealability is GRANTED on claim three. Jurists of reason might find it debatable whether the circumstances of the offense and rather slight post-offense evidence amounted to "some evidence." A COA is DENIED as to the first two issues for the reasons set out in the ruling. Petitioner is advised that even though a COA has been granted, he still must file a timely notice of appeal if he wishes to appeal. See Rule 11(b), Rules Governing § 2254 Cases. IT IS SO ORDERED. Dated: October 26, 2010. PHYLLIS J. HAMILTON United States District Judge

United States District Court

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For the Northern District of California

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P:\PRO-SE\PJH\HC.08\MARROQUIN3153.COA.wpd

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