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Xabandith v. Castro

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


September 29, 2009

PALIXATH XABANDITH, PETITIONER,
v.
ROY CASTRO, RESPONDENT.

The opinion of the court was delivered by: Alfred T. Goodwin. United States Circuit Judge Sitting by designation

ORDER DENYING CERTIFICATE OF APPEALABILITY

Palixath Xabandith, a California prisoner, filed a habeas corpus petition challenging his 2003 conviction and sentence for assault with a deadly weapon and assault with a firearm under 28 U.S.C. § 2254. On August 13, 2009, this court denied Xabandith's petition for habeas corpus relief. Petitioner filed a timely notice of appeal and motion for a certificate of appealability on September 11, 2009. Xabandith seeks a certificate of appealability on the single claim that his conviction for attempted murder was the natural and probable consequence of aiding and abetting another in an assault was founded on insufficient evidence.

"A certificate of appealability may issue . . . only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). Claims regarding sufficiency of the evidence in § 2254 proceedings are decided under state law. Jackson v. Virginia, 443 U.S. 307, 324 n.16 (1979). The sufficiency-of-the-evidence claim raised by Xabandith concerns California law. He has not made a substantial showing of the denial of a constitutional right to entitle him to a certificate of appealability. See id. at 318-19.

Therefore, the court declines to issue a certificate of appealability. Any further request for a certificate of appealability must be addressed to the Court of Appeals. See Fed. R. App. P. 22(b).

20090929

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