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Thompson v. Sisto

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


April 13, 2010

FRANK THOMPSON, PETITIONER,
v.
D. K. SISTO, RESPONDENT.

ORDER ISSUING A CERTIFICATE OF APPEALABILITY

In an Order filed April 12, 2010, this court denied petitioner Frank Thompson's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 et seq. Before petitioner can appeal this decision, a certificate of appealability must issue.

28 U.S.C. § 2253(c); Fed. R. App. P. 22(b).

A certificate of appealability may issue under § 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. Id. § 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)). In light of the differing conclusions reached by the undersigned and the assigned Magistrate Judge, "jurists of reason" could reach different conclusions with respect to the merits of petitioner's petition.

The court therefore issues a certificate of appealability on the issue of whether the state court unreasonably concluded that the parole board's decision satisfied the "some evidence" standard because the parole board's reliance on the nature of petitioner's offenses violated his due process rights as warned against in Biggs v. Terhune, 334 F.3d 910 (9th Cir. 2003), Sass v. Cal. Bd. of Prison Terms, 461 F.3d 1123, 1128-29 (9th Cir. 2006), and Irons II v. Carey, 505 F.3d 846, 850 (9th Cir. 2007).

IT IS SO ORDERED.

20100413

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