(HC) Jackson v. Carey, et al, No. 2:2002cv00946 - Document 65 (E.D. Cal. 2010)

Court Description: ORDER signed by Judge Frank C. Damrell, Jr on 8/23/10 ORDERING the Findings and Recommendations 63 are ADOPTED IN FULL; petitioner's application for a writ of habeas corpus is DENIED; a certificate of appealability is issued only as to the insufficiency of evidence claim. (Carlos, K)
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(HC) Jackson v. Carey, et al Doc. 65 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 DONALD RAY JACKSON, Petitioner, 11 12 13 14 vs. TOM CAREY, Respondent. ORDER / 15 16 No. 2:02-cv-0946 FCD KJN P Petitioner, a state prisoner proceeding through counsel, has filed this application 17 for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The matter was referred to a United 18 States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 19 On July 13, 2010, the magistrate judge filed findings and recommendations herein 20 which were served on all parties and which contained notice to all parties that any objections to 21 the findings and recommendations were to be filed within fourteen days. Petitioner has filed 22 objections to the findings and recommendations. 23 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 24 304, this court has conducted a de novo review of this case. Having carefully reviewed the 25 entire file, the court finds the findings and recommendations to be supported by the record and 26 by proper analysis. 1 Dockets.Justia.com Before petitioner can appeal this decision, a certificate of appealability must 1 2 issue. 28 U.S.C. § 2253(c); Fed. R. App. P. 22(b). A certificate of appealability may issue under 28 U.S.C. § 2253 “only if the 3 4 applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. 5 § 2253(c)(2). The certificate of appealability must “indicate which specific issue or issues 6 satisfy” the requirement. 28 U.S.C. § 2253(c)(3). A certificate of appealability should be granted for any issue that petitioner can 7 8 demonstrate is “‘debatable among jurists of reason,’” could be resolved differently by a different 9 court, or is “‘adequate to deserve encouragement to proceed further.’” Jennings v. Woodford, 10 290 F.3d 1006, 1010 (9th Cir. 2002) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 (1983)).1 Petitioner has made a substantial showing of the denial of a constitutional right in 11 12 the following issue presented in the instant petition: whether there was insufficient evidence to 13 support the 2000 decision finding petitioner unsuitable for parole.2 14 Accordingly, IT IS HEREBY ORDERED that: 15 1. The findings and recommendations filed July 13, 2010, are adopted in full; 16 2. Petitioner's application for a writ of habeas corpus is denied; 17 //// 18 //// 19 //// 20 //// 21 22 23 24 25 26 1 Except for the requirement that appealable issues be specifically identified, the standard for issuance of a certificate of appealability is the same as the standard that applied to issuance of a certificate of probable cause. Jennings, at 1010. 2 Petitioner raised three other issues. The magistrate judge directed petitioner to address in his objections whether a certificate of appealability should be issued and, if so, as to which issues. Petitioner’s objections address only the insufficiency of evidence claim. Accordingly, the undersigned finds that petitioner seeks a certificate of appealability only as to the insufficiency of evidence claim. 2 3. A certificate of appealability is issued only as to the insufficiency of evidence 1 2 claim. 3 DATED: August 23, 2010. 4 5 6 _______________________________________ FRANK C. DAMRELL, JR. UNITED STATES DISTRICT JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 3