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Morrison v. Carey

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


May 28, 2010

CURTIS LEE MORRISON, PETITIONER,
v.
THOMAS CAREY, WARDEN, RESPONDENT.

The opinion of the court was delivered by: Morrison C. England, Jr. United States District Judge

ORDER

Petitioner, a state prisoner proceeding pro se, challenged the execution of his sentence in an application for writ of habeas corpus which was denied by this court on January 14, 2010. Petitioner filed a timely notice of appeal and his appeal was processed to the United States Court of Appeals for the Ninth Circuit.

On May 25, 2010, the case was remanded to this court for the limited purpose of granting or denying a certificate of appealability in light of Hayward v. Marshall, No. 06-55392, 2010 WL 1664977, at *5 (9th Cir. Apr. 22, 2010) (en banc) (overruling portions of earlier cases 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).

A certificate of appealability may issue under 28 U.S.C. § 2253 "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)).*fn1

Here, petitioner challenged a December 17, 2003 decision of the Board of Prison Terms finding him unsuitable for parole. There was some evidence in the record to support the Board's decision that petitioner was not suitable for parole. Moreover, it is clear that the Board's denial of parole has not caused petitioner to serve a constitutionally disproportionate sentence for his offense. Petitioner failed to make a substantial showing of the denial of a constitutional right with respect to the Board's decision. Accordingly, a certificate of appealability shall not issue in this case.

IT IS SO ORDERED.


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