Nelson v. Pennsylvania Board of Probation and Parole

Filing 28

ORDER re: order of the Third Circuit 27 remanding matter for sole purpose of either issuing certificate of appealability or stating reasons why cert of appealability should not issue - It is hereby ORDERED that a certificate of appealability shall not issue in the above-captioned matter. (See order for complete details.) Signed by Honorable Christopher C. Conner on 09/15/11. (ki)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

TERRY NELSON,
Petitioner
v.
PENNSYLVANIA BOARD OF
PROBATION AND PAROLE;
PA STATE ATTORNEY GENERAL
Respondents

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CIVIL ACTION NO. 1:10-CV-1277
(Judge Conner)

ORDER
AND NOW, this 15th day of September, 2011, upon consideration of the order
of the Third Circuit remanding the above-captioned matter to this court for the sole
purpose of either issuing a certificate of appealability or stating reasons why a
certificate of appealability should not issue, see Nelson v. Pa. Bd. of Probation &
Parole, No. 11-2982 (3d Cir. 2011) (order dated September 7, 2011); (see also Doc.
27), and it appearing that, the court may issue 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), and it further appearing that by order of the court
dated June 1, 2011, (Doc. 22), this court adopted the report and recommendation
(“R&R”) (Doc. 20) of the Honorable Malachy E. Mannion, United States Magistrate
Judge, and denied the petition for a writ of habeas corpus filed by Terry Nelson
(“Nelson”), wherein Nelson asserted that respondents violated his Fourteenth
Amendment rights by revoking his parole, and the court finding, as stated in the
magistrate judge’s R&R, that the Pennsylvania Commonwealth Court had

substantial evidence upon which to find that Nelson had violated his parole and
that the Commonwealth Court’s decision was neither contrary to, nor involved an
unreasonable application of the Fourteenth Amendment, (see Doc. 20, at 6-9; Doc.
24), and the court therefore concluding that Nelson has not made a substantial
showing of the denial of a constitutional right to warrant the issuance of a
certificate of appealability, see 28 U.S.C. § 2253(c)(2), it is hereby ORDERED that a
certificate of appealability shall not issue in the above-captioned matter.

S/ Christopher C. Conner
CHRISTOPHER C. CONNER
United States District Judge