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Swanson v. Carey

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


July 14, 2010

DANIEL J. SWANSON, PETITIONER,
v.
TOM CAREY, WARDEN, RESPONDENT.

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

ORDER

On May 5, 2009, the magistrate judge recommended that petitioner's petition for a writ of habeas corpus, challenging a 2003 denial of parole, be denied. This court adopted the findings and recommendations on July 20, 2009. Thereafter petitioner filed a timely notice of appeal and requested the issuance of a certificate of appealability. This court neither granted nor denied the request under the authority of Rosas v. Nielsen, 428 F.3d 1229 (9th Cir. 2005), which held that such a certificate was not required for an appeal of a habeas denial which challenged parole or other administrative decisions. On December 16, 2009, the Court of Appeal issued an order confirming that no certificate of appealability was needed and directed the appeal to proceed.

According to the Court of Appeal's docket, petitioner filed his opening brief on January 21, 2010. On February 1, 2010, respondent asked that the case be stayed pending the issuance of the en banc decision in Hayward v. Marshall, 603 F.3d 546 (9th Cir. 2010) (en banc). The Court of Appeal granted the motion and directed that the request be renewed; respondent complied. After Hayward was issued, respondent moved to dismiss on the ground, among others, that the Court of Appeal lacked jurisdiction over the appeal because this court had not issued a certificate of appealability. Petitioner has now returned to this court, asking that a certificate be issued.

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 court must either issue a certificate of appealability indicating which issues satisfy the required showing or must state the reasons why such a certificate should not issue. Fed. R. App. P. 22(b).

For the reasons set forth in the magistrate judge's May 5, 2009 findings and recommendations, petitioner has not made a substantial showing of the denial of a constitutional right. Accordingly, a certificate of appealability should not issue in this action.

IT IS SO ORDERED.

20100714

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