Opinion
No. CIV S-06-0869 RRB GGH P.
July 20, 2010
ORDER
Petitioner, a state prisoner with appointed counsel, proceeds with a writ of habeas corpus concerning the denial of parole by the Board of Parole Hearings. The petition was denied on June 20, 2008, by the prior judge assigned to this case. Doc. 29. Petitioner timely requested a certificate of appealability that was denied by the prior judge, as at that time, a certificate of appealability was not required to challenge a denial of parole.
On July 8, 2010, the Ninth Circuit Court of Appeals remanded the instant case to the District Court for the limited purpose of granting or denying a certificate of appealability noting that the recent decision in Hayward v. Marshall, 603 F.3d 546 (9 th Cir. 2010) (en banc), overruled those portions of White v. Lambert, 370 F.3d 1002, 1004 (9th Cir. 2004), and Rosas v. Nielsen, 428 F.3d 1229, 1231-32 (9th Cir. 2005) (per curiam), that relieved a prisoner from obtaining a certificate of appealability to review the denial of a habeas petition challenging an administrative decision to deny parole.
Therefore, the undersigned considers petitioner's, July 8, 2010 (Doc. 38), motion for a certificate of appealability.
A certificate of appealability may issue under 28 U.S.C. § 2253 "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 of appealability must "indicate which specific issue or issues satisfy" the requirement. 28 U.S.C. § 2253(c)(3).
A certificate of appealability should be granted for any issue that petitioner can demonstrate is "`debatable among jurists of reason,'" could be resolved differently by a different court, or is "`adequate to deserve encouragement to proceed further.'"Jennings v. Woodford, 290 F.3d 1006, 1010 (9th Cir. 2002) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 (1983)).
Except for the requirement that appealable issues be specifically identified, the standard for issuance of a certificate of appealability is the same as the standard that applied to issuance of a certificate of probable cause. Jennings, at 1010.
Petitioner has made a substantial showing of the denial of a constitutional right in the following issue presented in the instant petition: 1) whether the Board of Parole Hearings denial of parole was improper and only relied on the unchangeable circumstances of petitioner's commitment offense in making a determination of his unsuitability.
Accordingly, IT IS HEREBY ORDERED that a certificate of appealability is issued in the present action.