-CHS (HC) Wessel v. Sisto et al, No. 2:2008cv01082 - Document 25 (E.D. Cal. 2011)

Court Description: ORDER adopting 23 FINDINGS AND RECOMMENDATIONS IN FULL signed by Judge William B. Shubb on 12/30/10: Petitioner's application for a writ of habeas corpus is denied. A certificate of appealability shall not issue. (Kaminski, H)
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-CHS (HC) Wessel v. Sisto et al Doc. 25 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 DAVID WESSEL, 11 Petitioner, 12 vs. 13 No. CIV S-08-1082 WBS CHS P D.K. SISTO, et al., 14 15 16 Respondents. ORDER / Petitioner, a state prisoner proceeding pro se, filed this application for a writ of 17 habeas corpus pursuant to 28 U.S.C. § 2254. The matter was referred to a United States 18 Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local General Order No. 262. 19 On December 8, 2010, the magistrate judge’s findings and recommendations were 20 filed and served on all parties. The findings and recommendations contained notice to all parties 21 that any objections to the findings and recommendations were to be filed within twenty days. 22 Petitioner filed objections to the magistrate judge’s findings and recommendations. 23 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 72- 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. The petition will be denied. 1 Dockets.Justia.com 1 If petitioner wishes to appeal the court’s decision, a certificate of appealability 2 must issue. 28 U.S.C. § 2253(c)(1); Hayward v. Marshall, 603 F.3d 546, 554 (9th Cir. 2010) (en 3 banc). A certificate of appealability may issue where “the applicant has made a substantial 4 showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). A certificate of 5 appealability should be granted for any issue that petitioner can demonstrate is “‘debatable 6 among jurists of reason,’” could be resolved differently by a different court, or is “‘adequate to 7 deserve encouragement to proceed further.’” Jennings v. Woodford, 290 F.3d 1006, 1010 (9th 8 Cir. 2002) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 (1983)).1 The certificate of 9 appealability must “indicate which specific issue or issues satisfy” the requirement. 28 U.S.C. 10 § 2253(c)(3). Here, petitioner failed to make a substantial showing of the denial of a 11 12 constitutional right with respect to the state parole authority’s denial of parole. Accordingly, a 13 certificate of appealability shall not issue in this case IT IS HEREBY ORDERED that: 14 15 1. The findings and recommendations filed December 8, 2010 are adopted in full; 16 2. Petitioner’s application for a writ of habeas corpus is denied; and 17 3. A certificate of appealability shall not issue. 18 DATED: December 30, 2010 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