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David Velasquez v. Tom L. Carey

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


September 21, 2011

DAVID VELASQUEZ, PETITIONER,
v.
TOM L. CAREY, ET AL., RESPONDENTS.

ORDER

Petitioner Velasquez, a state prisoner, filed an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. On August 26, 2009, this court granted the petition as to Velasquez's due process claim and entered judgment in his favor. Subsequently, the United States Supreme Court decided Swarthout v. Cooke, 131 S. Ct. 859 (2011), which foreclosed the claim on which relief was granted. Respondent successfully appealed and the United States Court of Appeals for the Ninth Circuit has reversed this court's judgment in accordance with Swarthout. The Ninth Circuit's judgment was entered July 13, 2011 and took effect on August 4, 2011.

For the foregoing reasons, IT IS HEREBY ORDERED THAT

1. The petition for writ of habeas corpus is denied.

2. Because the Ninth Circuit's mandate forecloses Petitioner's constitutional claim, a Certificate of Appealability will not issue. See 28 U.S.C. § 2253(c) (2).

20110921

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