United States District Court

For the Northern District of California

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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

EARL BOWDEN,

Petitioner, 

 v.

BEN CURRY, Warden,

Respondent. /

No. C 08-1201 WHA (PR) 

DENIAL OF CERTIFICATE OF

APPEALABILITY; INSTRUCTIONS

TO CLERK

This is a habeas corpus case filed by a state prisoner pursuant to 28 U.S.C. 2254 in

which he challenges the denial of parole. The petition was denied on its merits in an order

dated January 27, 2010. Judgment was entered that day. 

On February 10, 2010, petitioner filed a notice of appeal, requesting a certificate of

appealability ("COA"). See 28 U.S.C. § 2253(c); Fed. R. App. P. 22(b). The Clerk processed

the appeal without a ruling on the request for a COA because at that time, a prisoner did not

have to obtain a certificate of appealability in order to appeal the denial of a habeas petition

challenging the denial of parole. See White v. Lambert, 370 F.3d 1002, 1004 (9th Cir. 2004);

Rosas v. Nielsen, 428 F.3d 1229, 1231-32 (9th Cir. 2005) (per curiam). On April 22, 2010, the

Ninth Circuit overruled White and Rosas on that point, and held that a prisoner must obtain a

COA. See Hayward v. Marshall, 603 F.3d 546, 554 (9th Cir. 2010) (en banc). On May 3,

2010, pursuant to Hayward, the Ninth Circuit remanded the case for the limited purpose of a

decision on whether to grant or deny a COA. 

Case 3:08-cv-01201-WHA Document 19 Filed 08/09/10 Page 1 of 2
United States District Court

For the Northern District of California

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A judge shall grant a certificate of appealability "only if the applicant has made a

substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). The

certificate must indicate which issues satisfy this standard. See id. § 2253(c)(3). “Where a

district court has rejected the constitutional claims on the merits, the showing required to satisfy

§ 2253(c) is straightforward: the petitioner must demonstrate that reasonable jurists would find

the district court’s assessment of the constitutional claims debatable or wrong.” Slack v.

McDaniel, 120 S.Ct. 1595, 1604 (2000). Petitioner’s claims all contend that there was not

sufficient evidence to support the Governor’s decision denying parole. For the reasons set out

in the ruling on the petition, jurists of reason would not find debatable or wrong that the state

court reasonably applied California’s “some evidence” requirement in upholding the denial of

parole, and reasonably determined the facts in light of the evidence presented. See Hayward,

603 F.3d at 562-63. Petitioner’s request for a certificate of appealability is DENIED. 

The clerk shall transmit the file, including a copy of this order, to the Ninth Circuit. See

Fed. R. App. P. 22(b); United States v. Asrar, 116 F.3d 1268, 1270 (9th Cir. 1997). Petitioner

may then ask the Ninth Circuit to issue the certificate, see R.App.P. 22(b)(1), or if he does not,

the notice of appeal will be construed as such a request, see R.App.P. 22(b)(2).

The Clerk shall close the file. 

IT IS SO ORDERED.

Dated: August 9 , 2010. 

WILLIAM ALSUP

UNITED STATES DISTRICT JUDGE

G:\PRO-SE\WHA\HC.08\BOWDEN1201.COA.wpd 

Case 3:08-cv-01201-WHA Document 19 Filed 08/09/10 Page 2 of 2