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Jeffry Ian Cook v. D.K. Sisto

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


January 26, 2011

JEFFRY IAN COOK,
PETITIONER,
v.
D.K. SISTO, WARDEN, RESPONDENT.

The opinion of the court was delivered by: Alex Kozinski Chief Circuit Judge

ORDER

The Supreme Court has now superseded the Ninth Circuit cases supporting Cook's habeas petition. See Swarthout v. Cooke, No. 10-333, 2011 WL 197627 (U.S. Jan. 24, 2011) (per curiam). It explained that the federal courts may not review whether a California court correctly applied the state's "some evidence" standard. Id. at *3. Our review is therefore limited to determining whether the parole candidate was "allowed an opportunity to be heard" and "provided a statement of the reasons why parole was denied." Id. at *2. Cook received both. Because Cook hasn't raised any other claims, his petition is DENIED.

In light of Swarthout, no reasonable jurist would find my ruling debatable or wrong. Cook therefore isn't entitled to a certificate of appealability. See 28 U.S.C. § 2253(c); Slack v. McDaniel, 529 U.S. 473, 484 (2000). Cook's motion page 2 for an evidentiary hearing (docket entry 28) and motion for appointment of counsel (docket entry 29) are also DENIED. The briefing order of January 5, 2011 (docket entry 27) is vacated.

Sitting by designation

20110126

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