UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
July 16, 2010
RICKY LOUA THOR, PETITIONER,
D. K. SISTO, RESPONDENT.
Crt. of App. No. 08-7060
ORDER ISSUING A CERTIFICATE OF APPEALABILITY
By written Order filed July 25, 2008, Senior Circuit Judge Arthur L. Alarcón denied petitioner Ricky Lua Thor's application for a writ of habeas corpus. On September 4, 2008, petitioner filed written Notice of Appeal from that Order. On September 30, 2008, Judge Alarcón entered an order granting petitioner's motion to reopen the time to file an appeal pursuant to Fed. R. App. P. 4(a)(6), and subsequently withdrew from handling this case.
On June 15, 2010, the clerk of this court received notice from Appellate Commissioner Peter L. Shaw advising that the district court had not issued or declined to issue a certificate of appealability pursuant to 28 U.S.C. § 2253, and remanding the matter to this court for the limited purpose of granting or denying a certificate of appealability. The matter was reassigned to the undersigned judge for purposes of responding to the Appellate Commissioner's Order.
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 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)).
This court has carefully reviewed Judge Alarcón's Order of July 25, 2008, and concludes that reasonable jurists could differ on the question of whether the state court's decision that the California Board of Parole Hearings' determination that petitioner was unsuitable parole was supported by some evidence constituted an unreasonable application of the "some evidence" principle articulated in Superintendent v. Hill, 472 U.S. 445, 454 (1985).
IT IS THEREFORE ORDERED that a certificate of appealability is hereby issued.
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