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Frank Kenneth Benson v. D. K. Sisto

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


November 1, 2011

FRANK KENNETH BENSON, PETITIONER,
v.
D. K. SISTO, WARDEN, CALIFORNIA STATE PRISON, SOLANO, RESPONDENT.

The opinion of the court was delivered by: James K. Singleton, Jr. United States District Judge

ORDER DENYING THE PETITION ON REMAND

Frank Kenneth Benson filed a Petition for Habeas Corpus under 28 U.S.C. § 2254. This Court granted the Writ in a Memorandum Decision,*fn1 and entered Judgment accordingly.*fn2 On appeal the Court of Appeals, citing the intervening decision in Swarthout v. Cooke, 131 S. Ct. 859, 863 (2011) (per curiam), vacated this Court's Judgment and remanded the matter.*fn3 Because Benson has failed to raise any issue of constitutional dimension, he is not entitled to relief.

IT IS THEREFORE ORDERED THAT the Judgment herein entered on August 12, 2011, at Docket No. 20 is hereby VACATED, and the Petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus is DENIED.

IT IS FURTHER ORDERED THAT the Court declines to issue a Certificate of Appealability.*fn4 Any further request for a Certificate of Appealability must be addressed to the Court of Appeals.*fn5

The Clerk of the Court is to enter judgment accordingly.

James K. Singleton, Jr.


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