Abston v. Eichenberger

Filing 37

ORDER DISREGARDING MOTIONS: 31 Motion for Certificate of Appealability, 32 Motion to Proceed IFP, AND 34 Motion to Request Evidentiary Hearing and Production of Discovery, signed by Magistrate Judge Sandra M. Snyder on 8/11/2010. (Marrujo, C)

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1 2 3 4 5 6 7 EASTERN DISTRICT OF CALIFORNIA 8 9 10 11 12 KENT EICHENBERGER, Warden 13 Respondent. 14 15 On July 28, 2009, the instant Petition for Writ of Habeas Corpus filed pursuant to 28 16 U.S.C. 2254 was denied on the merits and judgment was entered in favor of Respondent. In 17 that order, the Court also declined to issue a Certificate of Appealability. 18 On August 21, 2009, Petitioner filed a notice of appeal, along with a motion for 19 certificate of appealability, motion to proceed in forma pauperis, and motion for evidentiary 20 hearing and discovery. 21 On October 8, 2008, this Court granted Petitioner's prior motion for in forma pauperis 22 status, and a party who was permitted to proceed in forma pauperis in the district court may 23 proceed in forma pauperis on appeal without further authorization unless the district court 24 certifies that the appeal is not taken in good faith. See Fed. R. App. P. 24(a)(3). Accordingly, 25 Petitioner's motion for in forma pauperis status is moot. 26 As previously stated, in the Court's July 28, 2009, the Court declined to issue a 27 Certificate of Appealability finding "that reasonable jurists would not find it debatable that the 28 1 / [Docs. 31, 32, 34] v. NANCY ABSTON, Petitioner, 1:08-cv-01483-SMS (HC) ORDER DISREGARDING MOTIONS FOR IN FORMA PAUPERIS ON APPEAL, CERTIFICATE OF APPEALABILITY, AND EVIDENTIARY HEARING AND DISCOVERY UNITED STATES DISTRICT COURT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 state courts' decision denying Petitioner's petition for writ of habeas corpus were not "objectively unreasonable." Accordingly, Petitioner's motion for a Certificate of Appealability is moot. Petitioner has also requested an evidentiary hearing and production of discovery. Petitioner's motion is addressed to and must be resolved by the United State Court of Appeals for the Ninth Circuit, as this Court no longer has jurisdiction over the case. Accordingly, Petitioner's motion shall be disregarded. Based on the foregoing, Petitioner's motions for in forma pauperis status, certificate of appealability, and evidentiary and discovery, are DISREGARDED. IT IS SO ORDERED. Dated: icido3 August 11, 2010 /s/ Sandra M. Snyder UNITED STATES MAGISTRATE JUDGE 2

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