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Buford v. Butler

October 18, 2010

WILLIAM BUFORD, PETITIONER,
v.
D. BUTLER, RESPONDENT.



The opinion of the court was delivered by: Garland E. Burrell, Jr. United States District Judge

ORDER

Petitioner filed a notice of appeal of this court's June 11, 2008 denial of his application for a writ of habeas corpus. On July 11, 2008, Judge Alarcón directed the processing of petitioner's appeal without issuance of a certificate of appealability. On July 8, 2010, the Ninth Circuit remanded petitioner's case to the undersigned for the limited purpose of granting or denying a certificate of appealability.

Under 28 U.S.C. § 2253(c)(2), a certificate of appealability may issue "only if the applicant has made a substantial showing of the denial of a constitutional right." See also Fed. R. App. P. 22(b). 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 this case, petitioner contends that the Contra Costa Superior Court erred in concluding that some evidence supported the Board of Prison Terms' decision not to set a release date. The court concludes that petitioner has made the requisite showing for issuance of a certificate of appealability on the issue of whether some evidence supported the Board's decision.

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

20101018

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