Opinion
No. 2:06-cv-02455 ALA (HC).
July 22, 2008
ORDER
Petitioner Terry Brown, a state prisoner proceeding pro se, has timely filed a notice of appeal of this Court's July 2, 2008 order denying his application for a writ of habeas corpus. He has also requested a Certificate of Appealability.
When an application for federal habeas corpus challenges "the Board of Prison Terms' administrative decision to deny [a] request for parole," but not "the State court judgment or sentence derived therefrom," the challenged decision relates to the execution of a petitioner's sentence. Rosas v. Nielsen, 428 F.3d 1229, 1231 (9th Cir. 2005). Consequently, a petitioner challenging a parole denial need not secure a certificate of appealability to appeal a district court's denial of his habeas petition because the petitioner is not challenging a detention arising out of "process issued by a State court." 28 U.S.C. § 2253(c)(1)(A).
In Rosas, "[t]he target of the first ground [of the] petition [was] not the State court judgment or sentence derived therefrom, but the Board of Prison Terms' administrative decision to deny his request for parole." 428 F.3d at 1232. Here, Petitioner targets the Governor's administrative decision to overturn the Board of Prison Terms' decision to grant him parole. As in Rosas, the challenged decision relates to the execution of Petitioner's sentence, and no certificate of appealability is required.
The Clerk of the Court is DIRECTED to refer the appeal to the Ninth Circuit.