(HC) Jackson v. Hartley, No. 1:2010cv00994 - Document 5 (E.D. Cal. 2010)

Court Description: ORDER Deeming The Respondent To Be James D. Hartley, ORDER Denying Petitioner's Petition For Writ Of Habeas Corpus (Doc. 1 ), ORDER Directing The Clerk To Enter Judgment For Respondent And To Close The Action, ORDER Declining To Issue A Certificate Of Appealability, signed by Magistrate Judge Sheila K. Oberto on 12/10/2010. CASE CLOSED.(Fahrney, E)
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(HC) Jackson v. Hartley Doc. 5 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 DARWIN JACKSON, 11 Petitioner, 12 13 14 v. JAMES D. HARTLEY, 15 Respondent. 16 17 ) ) ) ) ) ) ) ) ) ) ) ) 1:10-cv—0994-SKO-HC ORDER DEEMING THE RESPONDENT TO BE JAMES D. HARTLEY ORDER DENYING PETITIONER’S PETITION FOR WRIT OF HABEAS CORPUS (DOC. 1) ORDER DIRECTING THE CLERK TO ENTER JUDGMENT FOR RESPONDENT AND TO CLOSE THE ACTION ORDER DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY 18 19 Petitioner is a state prisoner proceeding pro se and in 20 forma pauperis with a petition for writ of habeas corpus pursuant 21 to 28 U.S.C. § 2254. 22 Petitioner has consented to the jurisdiction of the United States 23 Magistrate Judge to conduct all further proceedings in the case, 24 including the entry of final judgment, by manifesting consent in 25 a signed writing filed by Petitioner on June 15, 2010 (doc. 3). 26 Pending before the Court is the petition, which was filed on June 27 4, 2010. 28 /// Pursuant to 28 U.S.C. § 636(c)(1), 1 Dockets.Justia.com 1 I. 2 Petitioner, who is an inmate of Avenal State Prison (ASP) Jurisdiction 3 serving a life sentence for a 1984 conviction of murder sustained 4 in Los Angeles County, challenges a prison disciplinary finding 5 made at Avenal on December 30, 2007, that Petitioner committed 6 battery on an inmate in violation Cal. Code Regs., tit. 15, § 7 3005(c), which resulted in a forfeiture of earned time credits. 8 (Pet. 34-35.) 9 Amendment right to a fair disciplinary hearing and his Sixth and Petitioner alleges 1) he was denied his Fourteenth 10 Fourteenth Amendment right to cross-examine the alleged victim; 11 and 2) the finding of guilt, which rests on evidence from 12 allegedly unreliable, confidential informants and is contradicted 13 by circumstantial evidence, is not supported by some evidence, 14 and thus Petitioner suffered a denial of due process of law. 15 (Pet. 1, 3-4, 10-12, 20-21.) 16 Because the petition was filed after April 24, 1996, the 17 effective date of the Antiterrorism and Effective Death Penalty 18 Act of 1996 (AEDPA), the AEDPA applies in this proceeding. 19 v. Murphy, 521 U.S. 320, 327 (1997), cert. denied, 522 U.S. 1008 20 (1997); Furman v. Wood, 190 F.3d 1002, 1004 (9th Cir. 1999). 21 A district court may entertain a petition for a writ of 22 habeas corpus by a person in custody pursuant to the judgment of 23 a state court on the ground that the custody is in violation of 24 the Constitution, laws, or treaties of the United States. 25 U.S.C. §§ 2254(a), 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 26 375 n.7 (2000). Lindh 28 27 Plaintiff claims that in the course of the proceedings 28 resulting in the disciplinary finding, he suffered violations of 2 1 his constitutional rights. 2 Constitution are alleged, it is concluded that the Court has 3 subject matter jurisdiction over the instant petition. 4 Because violations of the Further, Petitioner describes the named Respondent as the 5 warden of his institution of confinement, “James A. Hartley.” 6 (Pet. 1, 10, 27-28.) 7 California Department of Corrections and Rehabilitation (CDCR) 8 reflects that the warden of ASP is named “James D. Hartley.” 9 Court DEEMS the named Respondent to be “James D. Hartley.” 10 Petitioner has thus named as a respondent a person who has 11 custody of the Petitioner within the meaning of 28 U.S.C. § 2242 12 and Rule 2(a) of the Rules Governing Section 2254 Cases in the 13 District Courts (Habeas Rules). 14 Supreme Court, 21 F.3d 359, 360 (9th Cir. 1994). 15 Reference to the facilities website of the The See, Stanley v. California Accordingly, this Court has jurisdiction over this action 16 and over Respondent James D. Hartley, Warden of Avenal State 17 Prison. 18 II. Screening the Petition and Considering the Petition on the Merits 19 Rule 4 of the Rules Governing § 2254 Cases in the United 20 States District Courts (Habeas Rules) requires the Court to make 21 a preliminary review of each petition for writ of habeas corpus. 22 The Court must summarily dismiss a petition "[i]f it plainly 23 appears from the petition and any attached exhibits that the 24 petitioner is not entitled to relief in the district court....” 25 Habeas Rule 4; O’Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 26 1990); see also Hendricks v. Vasquez, 908 F.2d 490 (9th Cir. 27 1990). Habeas Rule 2(c) requires that a petition 1) specify all 28 3 1 grounds of relief available to the Petitioner; 2) state the facts 2 supporting each ground; and 3) state the relief requested. 3 Notice pleading is not sufficient; rather, the petition must 4 state facts that point to a real possibility of constitutional 5 error. 6 O’Bremski v. Maass, 915 F.2d at 420 (quoting Blackledge v. 7 Allison, 431 U.S. 63, 75 n. 7 (1977)). 8 that are vague, conclusory, or palpably incredible are subject to 9 summary dismissal. 10 11 Rule 4, Advisory Committee Notes, 1976 Adoption; Allegations in a petition Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990). Further, the Court may dismiss a petition for writ of habeas 12 corpus either on its own motion under Habeas Rule 4, pursuant to 13 the respondent's motion to dismiss, or after an answer to the 14 petition has been filed. 15 8, 1976 Adoption; see, Herbst v. Cook, 260 F.3d 1039, 1042-43 16 (9th Cir. 2001). 17 Advisory Committee Notes to Habeas Rule Here, the Court has reviewed the petition, which includes 18 apparently complete documentation of the disciplinary proceedings 19 as well as documentation of Petitioner’s having exhausted the 20 administrative remedies available to Petitioner within the CDCR. 21 (Pet. 43-44.) 22 Other than Petitioner’s denial of having committed the 23 battery, there do not appear to be any disputed material facts 24 with respect to the disciplinary proceedings or the evidence 25 underlying the finding that Petitioner battered inmate Callender. 26 Petitioner has provided an apparently complete record of the 27 proceedings in question and has set forth multiple arguments 28 concerning the proceedings and the evidence. 4 It does not appear 1 that further input from Petitioner or input from Respondent is 2 necessary. 3 Accordingly, the Court will proceed to determine the issues 4 raised by Petitioner in the petition on the basis of the 5 documentary record provided by Petitioner. 6 III. 7 The initial charge was battery on an inmate with serious 8 9 injury. The Disciplinary Proceedings (Pet. 43.) Correctional Sergeant S. Tuck reported in a rules violation 10 report on December 30, 2007, that on that date and again on 11 December 31, 2007 and January 2, 2008, he received confidential 12 information that Petitioner had battered inmate Callender with a 13 weapon in Callender’s bunk in Dorm 13 in a dispute over bed 14 space; Petitioner’s hand swelled afterwards. 15 reported that more than one confidential source independently 16 provided the same information, and part of the information 17 provided by the sources had already proven to be true. 18 (Pet. 51-53.) Tuck Callender had reported to the clinic on December 30 with 19 serious injuries consistent with having been the victim of a 20 battery. 21 Regional Medical Center (CRMC) confirmed that Callender had 22 suffered a 2.5 centimeter laceration to the right cheek requiring 23 sutures, and a fractured left clavicle. 24 December 31, 2007, medical examination of petitioner at about 25 7:00 p.m. revealed injuries to his right hand consistent with the 26 confidential information received that Petitioner’s hand had not 27 been swollen at the time officers searched the inmates, but it 28 swelled up later. Further, an emergency physician record from Coalinga (Pet. 55.) (Pet. 57-61.) On Although Petitioner had stated 5 1 that he had received the injuries at work, the officers’ daily 2 logbook in the furniture factory where Petitioner worked 3 contained no entry of any injury to Petitioner or any filing of 4 workman’s compensation forms. 5 Petitioner’s right hand three times and included the photos in 6 the incident package. 7 Sergeant Tuck photographed (Pet 50.) Petitioner’s denial was set forth in the report of the 8 investigating employee, Correctional Officer R. Pires. 9 55.) (Pet. Pires characterized the confidential information as 10 voluntary and confirmed that the sources were not facing 11 misconduct charges and did not receive anything in exchange for 12 the information. (Pet. 56.) 13 With respect to possible witnesses, watch officers responded 14 to the investigating employee that they did not have a clear view 15 of the site of the assault, and there was never any code message 16 that went out, so there was no need to respond or otherwise 17 assist with respect to the incident. 18 Smith did not know if Petitioner’s hand had been injured by the 19 glue wheel or glue wheel clamp press at work on December 29, 20 2007. 21 Petitioner’s hand was injured on that date. 22 Dew said Petitioner’s hand was injured by the glue wheel on 23 December 29, 2007, and it should have been logged in the book. 24 (Pet. 96.) 25 (Pet. 95-96.) (Pet. 56, 94-95.) Inmate Inmate Stinson could not remember if (Id. at 96.) Inmate The evidence presented at the hearing included Sergeant 26 Tuck’s rules violation report of December 30, 2007; the medical 27 reports of injuries of both inmates; a crime incident report; the 28 investigative employee’s report dated January 24, 2008; 6 1 confidential information contained in Petitioner’s central file 2 dated December 31, 2007, and January 2, 2008; confidential 3 information disclosure forms dated December 31, 2007, January 2, 4 2008, and January 11, 2008; a confidential medical report dated 5 December 30, 2007, from CRMC; the furniture factory logbook; and 6 photographs of the injuries received by the Petitioner and victim 7 Callender. 8 9 (Pet. 52.) Hearing Officer Campbell relied on that evidence and concluded that the scenario set forth in the written report was 10 supported by the confidential information and inmate Callender’s 11 medical report. 12 of the three confidential documents in the finding phase of the 13 hearing and deemed them reliable pursuant to Cal. Code Regs., 14 tit. 15, § 3321(c) because more than one source had independently 15 provided the same information. 16 that the evidence presented was a preponderance of evidence, and 17 indeed was overwhelmingly conclusive evidence, that Petitioner’s 18 behavior occurred as documented by the reporting employee, and 19 thus Petitioner was found guilty of battery on an inmate. 20 52.) 21 of credit with additional loss of privileges. 22 April 2008, the credit forfeiture was reduced to ninety days in 23 view of the failure to establish serious injury. 24 43.) 25 (Pet. 52-53.) Campbell accepted the reliability The hearing officer concluded (Pet. Campbell assessed three hundred and sixty (360) days loss (Pet. 53.) In (Pet. 88, 91, The report of the hearing held on February 5, 2008, reflects 26 that Petitioner acknowledged that he had received all pertinent 27 documentation at least twenty-four hours prior to the hearing 28 held on February 5, 2008, including the report of the 7 1 investigating employee. 2 disciplinary charge were read to Petitioner at the hearing, who 3 stated that he understood the charges and was prepared to 4 proceed. 5 December 30, 2007, had been served on Petitioner on January 9, 6 2008, which was within fifteen days from the date of discovery; 7 further, the disciplinary hearing was held on February 5, which 8 was within thirty days of service of the report. 9 process timeliness requirements had been met. 10 (Pet. 51.) The reports and the It was found that the disciplinary report dated Thus, all due (Pet. 51.) The investigating employee’s report reflects that Petitioner 11 requested staff and inmate witnesses at the hearing. 12 The report of the hearing specifically states the following with 13 respect to the “request for witnesses” inquiry: 14 15 (Pet. 96.) Subject rescinded his previous request for witnesses to be present at the hearing. Subject willingly waived all his rights to such and therefore, his request was granted by this Senior Hearing Officer. 16 (Pet. 51.) 17 The Kings County Superior Court issued the last reasoned 18 decision on the merits, determining on February 11, 2009, that 19 the finding of battery was supported by some evidence in 20 accordance with Superintendent v. Hill, 472 U.S. 445, 454-56 21 (1985), namely, confidential information obtained by Respondent 22 and found to be reliable under the standards set forth in Cal. 23 Code Regs., tit. 15, § 3321(c), which pointed to Petitioner as 24 the inmate who brutally assaulted the victim, as well as visible 25 injuries to Petitioner’s right hand, combined with an absence of 26 any documentation by Petitioner of any work injury on the date of 27 the incident. (Pet. 20-21.) Further, although Petitioner 28 8 1 alleged a denial of an opportunity to cross-examine the victim, 2 Petitioner did not allege a specific request to conduct such 3 cross-examination, and the court assumed to be true the statement 4 within the relevant rules violation report that Petitioner had 5 rescinded his previous request for witnesses to be present at the 6 hearing. 7 Petitioner failed to demonstrate exhaustion of administrative 8 remedies, which was a jurisdictional prerequisite to judicial 9 relief. 10 (Id. at 21.) Finally, the court reasoned that (Id.) In the state court, Petitioner alleged that he had suffered 11 a work injury and had told an investigating officer that work was 12 the source of the injuries to his right hand. 13 alleged that he was placed in administrative segregation on 14 December 31, 2007, and was given a hearing on February 5, 2008, 15 by Senior Hearing Officer P. Campbell, at which Petitioner pled 16 not guilty and claimed to have been falsely identified as the 17 perpetrator. 18 had claimed that it was from falling downstairs that he had 19 sustained his injuries of swelling to the back of the head, a cut 20 to the right cheek requiring two stitches, and a broken left 21 collarbone; the victim did not identify Petitioner as the 22 attacker. 23 were inconsistent with one confidential report that the attacker 24 had a weapon. 25 reported that he rescinded his request for witnesses to be 26 present at the hearing, but he does not dispute the rescission or 27 affirmatively allege facts contrary to the occurrence of a waiver 28 of any right to cross-examine witnesses. (Pet. 26, 34.) (Pet 30-31.) (Pet. 26.) He Petitioner alleged that the victim (Pet. 33.) Petitioner argued that his hand injuries Petitioner recites that it was 9 (Pet. 27-29.) 1 IV. 2 A district court may entertain a petition for a writ of 3 habeas corpus by a person in custody pursuant to the judgment of 4 a state court on the ground that the custody is in violation of 5 the Constitution, laws, or treaties of the United States. 28 6 U.S.C. §§ 2254(a), 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 7 375 n.7 (2000). Legal Standards 8 Title 28 U.S.C. § 2254 provides in pertinent part: 9 (d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim– 10 11 12 13 14 15 16 (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 17 18 19 20 (e)(1) In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption or correctness by clear and convincing evidence. 21 The Petitioner bears the burden of establishing that the decision 22 of the state court was contrary to, or involved unreasonable 23 application of, the precedents of the United States Supreme 24 Court. Lambert v. Blodgett, 393 F.3d 943, 970 n.16 (9th Cir. 25 2004); Baylor v.Estelle, 94 F.3d 1321, 1325 (9th Cir. 1996). 26 27 28 10 1 Procedural due process of law requires that where the state 2 has made good time subject to forfeiture only for serious 3 misbehavior, then prisoners subject to a loss of good-time 4 credits must be given advance written notice of the claimed 5 violation, a right to call witnesses and present documentary 6 evidence where it would not be unduly hazardous to institutional 7 safety or correctional goals, and a written statement of the 8 finder of fact as to the evidence relied upon and the reasons for 9 disciplinary action taken. 10 563-64 (1974). 11 not required. Wolff v. McDonnell, 418 U.S. 539, Confrontation, cross-examination, and counsel are Wolff, 418 U.S. at 568-70. 12 Further, where good-time credits are a protected liberty 13 interest, the decision to revoke credits must be supported by 14 some evidence in the record. 15 445, 454 (1985). 16 17 18 19 20 21 22 23 24 Superintendent v. Hill, 472 U.S. The Court in Hill stated: We hold that the requirements of due process are satisfied if some evidence supports the decision by the prison disciplinary board to revoke good time credits. This standard is met if “there was some evidence from which the conclusion of the administrative tribunal could be deduced....” United States ex rel. Vajtauer v. Commissioner of Immigration, 273 U.S., at 106, 47 S.Ct., at 304. Ascertaining whether this standard is satisfied does not require examination of the entire record, independent assessment of the credibility of witnesses, or weighing of the evidence. Instead, the relevant question is whether there is any evidence in the record that could support the conclusion reached by the disciplinary board. See ibid.; United States ex rel. Tisi v. Tod, 264 U.S. 131, 133-134, 44 S.Ct. 260, 260-261, 68 L.Ed. 590 (1924); Willis v. Ciccone, 506 F.2d 1011, 1018 (CA8 1974). 25 Superintendent v. Hill, 472 U.S. at 455-56. 26 does not require that the evidence logically preclude any 27 conclusion other than the conclusion reached by the disciplinary 28 board; rather, there need only be some evidence in order to 11 The Constitution 1 ensure that there was some basis in fact for the decision. 2 Superintendent v. Hill, 472 U.S. at 457. 3 V. 4 With respect to the requirement that some evidence support Analysis 5 the finding that Petitioner committed the battery upon inmate 6 Callender, this Court does not make its own assessment of the 7 credibility of witnesses or re-weigh the evidence. 8 must, however, ascertain that the evidence has some indicia of 9 reliability and, even if meager, “not so devoid of evidence that The Court 10 the findings of the disciplinary board were without support or 11 otherwise arbitrary.” 12 Cir. 1987) (quoting Superintendent v. Hill, 472 U.S. 445, 457 13 (1985)). 14 Cato v. Rushen, 824 F.2d 703, 704-05 (9th In Cato v. Rushen, 824 F.2d at 705, the Court found that the 15 Hill standard was not satisfied where the only evidence 16 implicating the inmate was another inmate’s statement that was 17 related to prison officials through a confidential informant who 18 had no first-hand knowledge of any relevant statements or actions 19 by the inmate being disciplined and whose polygraph results were 20 inconclusive. 21 constitute “some evidence” supportive of various findings 22 includes the report of a prison guard who saw several inmates 23 fleeing an area after an assault on another inmate when no other 24 inmates were in the area, Superintendent v. Hill, 472 U.S. 456- 25 57; the statement of a guard that the inmate had admitted a theft 26 to supplement his income, coupled with corroborating evidence, 27 Bostic v. Carlson, 884 F.2d 1267, 1270 (9th Cir. 1989); an 28 inmate’s admission and corroborating, circumstantial evidence, In contrast, evidence evaluated and found to 12 1 Crane v. Evans, 2009 WL 148273, *3 (N.D.Cal. Feb. 2, 2009); and 2 an inmate’s admission of having engaged in the violation plus an 3 officer’s report of having heard a recording of the offending 4 conversation, Dawson v. Norwood, 2010 WL 761226, *1 (C.D.Cal. 5 March 1, 2010). 6 A prison disciplinary tribunal’s determination derived from 7 a statement of an unidentified inmate informant satisfies due 8 process when the record contains 1) some factual information from 9 which the trier can reasonably conclude that the information was 10 reliable, and 2) a prison official's affirmative statement that 11 safety considerations prevent the disclosure of the informant's 12 name. 13 Reliability may be established by various methods, such as 1) the 14 oath of a reporting or investigating officer appearing before the 15 committee as to the truth of his report that contains 16 confidential information, 2) corroborating testimony, 3) a 17 statement on the record by a member of the tribunal that he had 18 firsthand knowledge of sources of information and considered them 19 reliable based on the informant's past record, 4) an in camera 20 review of the documentation from which credibility was assessed, 21 or 5) proof that an informant previously supplied reliable 22 information. 23 Zimmerlee v. Keeney, 831 F.2d 183, 186-87 (9th Cir. 1987). Zimmerlee v. Keeney, 831 F.2d at 186-87. Information from an unidentified confidential informant may 24 constitute some evidence where the confidentiality is necessary 25 and there is some examination of the indicia of the reliability 26 of the evidence, such as multiple confidential sources of the 27 information, incrimination by a source, or a history of 28 reliability. Gauthier v. Dexter, 573 F.Supp.2d 1282, 1291 13 1 (C.D.Cal. 2008). 2 safety determination should be deferential. 3 process does not require that a prisoner in a disciplinary 4 proceeding be allowed to confront confidential informants. 5 v. McDonnell, 418 U.S. 539, 568 (1974). 6 Review of the reliability determination and the Id. at 187. Due Wolff Here, it was expressly determined by the hearing officer, 7 “The identity of the sources or more specific information about 8 how the information was retained is being withheld to protect the 9 sources and institutional security,” and “Specific information 10 would reveal the identity of the sources.” 11 record contains an affirmative statement that safety 12 considerations preclude release of the identity of the 13 informants. 14 (Pet. 52.) Thus, the Further, the record contains ample factual information 15 reflecting the reliability of the informants. 16 that the confidential information was reliable because more than 17 one source had independently provided the same information. 18 (Pet. 52.) 19 reported several confidential sources and further reported that 20 more than one source independently provided the same information, 21 and that part of the information provided by the sources had 22 already proven to be true. 23 corroborative evidence consisting of reliable reports of inmate 24 Callender’s injuries, Petitioner’s own injuries, and Petitioner’s 25 inconsistency in claiming a work injury but not having reported 26 it as such. 27 determination of reliability by the hearing officer. 28 It was concluded This was supported by the report of Officer Tuck, who Further, there was significant There was sufficient factual material to support a Petitioner emphasizes that his victim did not identify 14 1 Petitioner as his attacker, and Petitioner argues that some of 2 the confidential reports, such as one that Petitioner used a 3 weapon, was inconsistent with the injury to Petitioner’s hand. 4 However, a report that a weapon was used is not necessarily 5 inconsistent with an injury to Petitioner’s hand, and 6 identification may reliably be demonstrated by means other than 7 the victim’s testimony. 8 evidence. 9 This Court will not re-weigh the The Court thus concludes that the disciplinary finding that 10 Petitioner battered inmate Callender was supported by some 11 evidence. 12 With respect to cross-examining witnesses or presenting 13 witnesses, the Court notes the finding of the disciplinary 14 hearing officer that Petitioner rescinded his previous request 15 for the presence of witnesses at the hearing. 16 not affirmatively and specifically allege facts that would raise 17 an issue of material fact regarding the rescission of his 18 request. 19 conclusion that Petitioner had rescinded his request for 20 witnesses. Petitioner does The Court concludes that the record supports the 21 Further, the Court notes that cross-examination and 22 confrontation of witnesses in prison disciplinary hearings are 23 not guaranteed as a matter of federal due process of law. 24 Generally, an inmate is allowed to present witnesses and 25 documentary evidence when to do so does not threaten 26 institutional safety or correctional goals; the decision is left 27 to the sound discretion of the prison officials. 28 McDonnell, 418 U.S. 539, 566 (1974); Ponte v. Real, 471 U.S. 491, 15 Wolff v. 1 495 (1984). 2 waiver of witnesses. 3 Here, the prison officials accepted Petitioner’s The Court, therefore, concludes that Petitioner did not show 4 that he was denied due process of law by an absence of some 5 reliable evidence to support the disciplinary finding or by the 6 absence of witnesses from the hearing. 7 habeas corpus will be denied. The petition for writ of 8 VI. 9 Unless a circuit justice or judge issues a certificate of Certificate of Appealability 10 appealability, an appeal may not be taken to the court of appeals 11 from the final order in a habeas proceeding in which the 12 detention complained of arises out of process issued by a state 13 court. 14 U.S. 322, 336 (2003). 15 only if the applicant makes a substantial showing of the denial 16 of a constitutional right. 17 petitioner must show that reasonable jurists could debate whether 18 the petition should have been resolved in a different manner or 19 that the issues presented were adequate to deserve encouragement 20 to proceed further. 21 (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). 22 certificate should issue if the Petitioner shows that jurists of 23 reason would find it debatable whether the petition states a 24 valid claim of the denial of a constitutional right and that 25 jurists of reason would find it debatable whether the district 26 court was correct in any procedural ruling. 27 529 U.S. 473, 483-84 (2000). 28 conducts an overview of the claims in the habeas petition, 28 U.S.C. § 2253(c)(1)(A); Miller-El v. Cockrell, 537 A certificate of appealability may issue § 2253(c)(2). Under this standard, a Miller-El v. Cockrell, 537 U.S. at 336 A Slack v. McDaniel, In determining this issue, a court 16 1 generally assesses their merits, and determines whether the 2 resolution was debatable among jurists of reason or wrong. 3 It is necessary for an applicant to show more than an absence of 4 frivolity or the existence of mere good faith; however, it is not 5 necessary for an applicant to show that the appeal will succeed. 6 Miller-El v. Cockrell, 537 U.S. at 338. 7 A district court must issue or deny a certificate of 8 appealability when it enters a final order adverse to the 9 applicant. Id. 10 Rule 11(a) of the Rules Governing Section 2254 Cases. Here, it does not appear that reasonable jurists could 11 debate whether the petition should have been resolved in a 12 different manner. 13 of the denial of a constitutional right. 14 will decline to issue a certificate of appealability. Petitioner has not made a substantial showing 15 VII. 16 Accordingly, it is ORDERED that: 17 1) Accordingly, the Court 18 Disposition Respondent is DEEMED to be James D. Hartley, Warden of Avenal State Prison; and 19 2) The petition for writ of habeas corpus is DENIED; and 20 3) The Clerk is DIRECTED to enter judgment for Respondent 21 and close the action; and 22 23 4) The Court DECLINES to issue a certificate of appeal ability. 24 25 IT IS SO ORDERED. 26 Dated: ie14hj December 10, 2010 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 27 28 17