(HC) Oak v. Sisto, et al, No. 2:2008cv01005 - Document 29 (E.D. Cal. 2011)

Court Description: ORDER signed by Judge Garland E. Burrell, Jr on 2/25/11: A certificate of appealability shall not issue in this action. Petitioner's February 8, 2011 motion for clarification of order adopting findings and recommendations is denied as moot. (Kaminski, H)

Download PDF
(HC) Oak v. Sisto, et al Doc. 29 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 DARRYL OAK, Petitioner, ORDER vs. 12 13 No. CIV S-08-1005 GEB GGH P Respondent. 11 D. K. SISTO, 14 / 15 Petitioner, a state prisoner proceeding pro se, seeks a certificate of appealability 16 17 for this court’s January 31, 2011 denial of his application for a writ of habeas corpus. Before 18 petitioner can appeal this decision, a certificate of appealability must issue. 28 U.S.C. § 2253(c); 19 Fed. R. App. P. 22(b). A certificate of appealability may issue under 28 U.S.C. § 2253 “only if the 20 21 applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. 22 § 2253(c)(2). The court must either issue a certificate of appealability indicating which issues 23 satisfy the required showing or must state the reasons why such a certificate should not issue. 24 Fed. R. App. P. 22(b). 25 ///// 26 ///// 1 Dockets.Justia.com 1 For the reasons set forth in the magistrate judge’s November 18, 2010 findings 2 and recommendations, and also in light of the United States Supreme Court’s recent decision in 3 Swarthout v. Cooke, 502 U.S. ___, ___ S. Ct. ___, 2011 WL 197627 *2 (Jan. 24, 2011), 4 petitioner has not made a substantial showing of the denial of a constitutional right. Accordingly, 5 a certificate of appealability should not issue in this action. 6 IT IS HEREBY ORDERED THAT: 7 1. A certificate of appealability shall not issue in this action; and 8 2. Petitioner’s February 8, 2011 motion for clarification of order adopting findings 9 10 and recommendations is denied as moot. Dated: February 25, 2011 11 12 13 GARLAND E. BURRELL, JR. United States District Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 2

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.