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Jefferson Sison v. Larry Small

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


March 3, 2011

JEFFERSON SISON,
PETITIONER,
v.
LARRY SMALL, WARDEN. RESPONDENT.

The opinion of the court was delivered by: Hon. Roger T. BenitezUnited States District Judge

ORDER DENYING ISSUANCE OF A CERTIFICATE OF APPEALABILITY

Pro se Petitioner Jefferson Sison filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254. The Magistrate Judge recommended denying the petition. The Report and Recommendation was adopted on November 18, 2010. On November 30, 2010, Petitioner filed a notice of appeal. He has not requested a certificate of appealability for any of the claims presented in his Petition. "[I]f the prisoner neglects to request a certificate of appealability before going forward, the court of appeals can grant him one sua sponte." Hayward v.Marshall, 603 F.3d 546, 554 (9th Cir. 2010) (en banc, abrogated on other grounds by Swarthout v. Cooke, 502 U.S. ___, 2011 WL 197627 (Jan. 24, 2011) (per curiam). Here, however, the case has been remanded for the limited purpose of granting or denying the certificate. See Order of March 2, 2011, Appeal No. 10-57045.

Legal Standard

A certificate of appealability is authorized, "if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). To meet this standard, Petitioner must show that the issues are debatable among reasonable jurists or that the questions are adequate to deserve encouragement to proceed further. Hayward, 603 F.3d at 553. The showing necessitates something above "the absence of frivolity." Id.

Discussion

This Court has considered the issues raised by Petitioner with respect to whether they satisfy the standard for issuance of a certificate of appealability, and determines that none meet that standard.

Conclusion

Based upon the foregoing, the Court hereby denies the issuance of a certificate of appealability.

20110303

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