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Montue v. Schwartz

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


September 28, 2010

JOHN MONTUE, PETITIONER,
v.
WARDEN SCHWARTZ, RESPONDENT

ORDER

This matter has been remanded to this court from the United States Court of Appeals for the Ninth Circuit for the limited purpose of granting or denying a certificate of appealability. See 28 U.S.C. § 2253(c); Fed. R. App. P. 22(b).

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)).*fn1

Petitioner has made a substantial showing of the denial of a constitutional right in the following issue presented in the instant petition: Whether petitioner's right to due process was violated by the California Board of Prison Terms' March 13, 2002 decision to deny him a parole date.

Accordingly, IT IS HEREBY ORDERED that a certificate of appealability is issued in the present action.


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