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Walker v. Sisto

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


August 4, 2008

ERIC WALKER, PETITIONER,
v.
D.K. SISTO, WARDEN, ET AL., RESPONDENT.

The opinion of the court was delivered by: Arthur Alarcón United States Circuit Judge

ORDER

Petitioner Eric Walker has timely filed a notice of appeal of this Court's July 7, 2008 order denying his application for a writ of habeas corpus. He has also requested a Certificate of Appealability (doc. 25).

When an application for federal habeas corpus challenges "the Board of Prison Terms' administrative decision to deny [a] request for parole," but not "the State court judgment or sentence derived therefrom," the challenged decision relates to the execution of a petitioner's sentence. Rosas v. Nielsen, 428 F.3d 1229, 1231 (9th Cir. 2005). Consequently, a petitioner challenging a parole denial need not secure a certificate of appealability to appeal a district court's denial of his habeas petition because the petitioner is not challenging a detention arising out of "process issued by a State court." 28 U.S.C. § 2253(c)(1)(A).

InRosas, "[t]he target of the first ground [of the] petition [was] not the State court judgment or sentence derived therefrom, but the Board of Prison Terms' administrative decision to deny his request for parole." 428 F.3d at 1232. Here, Petitioner targets the California Board of Prison Terms' administrative decision finding him unsuitable for parole. As in Rosas, the challenged decision relates to the execution of Petitioner's sentence, and no certificate of appealability is required.

The Clerk of the Court is DIRECTED to refer the appeal to the Ninth Circuit.

20080804

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