Sison v. Small et al

Filing 24

ORDER Denying Issuance of a Certificate of Appealability. This Court has considered the issues raised by Petitioner with respect to whether they satisfy the standard for issuance of a certificate of appealability, and determines that none meet that s tandard. Based upon the foregoing, the Court hereby denies the issuance of a certificate of appealability. Signed by Judge Roger T. Benitez on 3/3/2011. (USCA Case No. 10-57045. Order electronically transmitted to US Court of Appeals. All non-registered users served via U.S. Mail Service.) (akr)

Sison v. Small et al

Doc. 24

1 2 3 4 5 6 7 8 9 10 11 12 JEFFERSON SISON, 13 14 v. 15 LARRY SMALL, Warden. 16 17 18
Respondent. Petitioner, ) ) ) ) ) ) ) ) ) ) ) Civil No. 09-cv-1185-BEN (WVG) ORDER DENYING ISSUANCE OF A CERTIFICATE OF APPEALABILITY UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

Pro se Petitioner Jefferson Sison filed a petition for a writ of habeas corpus under 28 U.S.C.

19 § 2254. The Magistrate Judge recommended denying the petition. The Report and Recommendation 20 was adopted on November 18, 2010. On November 30, 2010, Petitioner filed a notice of appeal. He has 21 not requested a certificate of appealability for any of the claims presented in his Petition. "[I]f the 22 prisoner neglects to request a certificate of appealability before going forward, the court of appeals can 23 grant him one sua sponte." Hayward v. Marshall, 603 F.3d 546, 554 (9th Cir. 2010) (en banc, abrogated 24 on other grounds by Swarthout v. Cooke, 502 U.S. ___, 2011 WL 197627 (Jan. 24, 2011) (per curiam). 25 Here, however, the case has been remanded for the limited purpose of granting or denying the 26 certificate. See Order of March 2, 2011, Appeal No. 10-57045. 27 28

Dockets.Justia.com

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Legal Standard A certificate of appealability is authorized, "if the applicant has made a substantial showing of

3 the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). To meet this standard, Petitioner must 4 show that the issues are debatable among reasonable jurists or that the questions are adequate to deserve 5 encouragement to proceed further. Hayward, 603 F.3d at 553. The showing necessitates something 6 above "the absence of frivolity." Id. 7 8
Discussion This Court has considered the issues raised by Petitioner with respect to whether they satisfy the

9 standard for issuance of a certificate of appealability, and determines that none meet that standard. 10 11
Conclusion Based upon the foregoing, the Court hereby denies the issuance of a certificate of appealability.

12 DATED: March 3, 2011 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
2 Hon. Roger T. Benitez United States District Judge