Krueger v. Cate

Filing 45

ORDER Construing Petitioner's 44 Motion for Certificate of Appealability as Notice of Appeal; ORDER Directing Clerk of Court to Process Appeal to Ninth Circuit, signed by District Judge Anthony W. Ishii on 5/28/13. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JOHN WALTER KRUEGER,

1:11-CV-00097 AWI BAM HC

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Petitioner,

ORDER CONSTRUING PETITIONER’S
MOTION FOR CERTIFICATE OF
APPEALABILITY AS NOTICE OF APPEAL

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v.
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MATTHEW CATE,

ORDER DIRECTING CLERK OF COURT
TO PROCESS APPEAL TO NINTH CIRCUIT

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Respondent.
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Petitioner is a state prisoner proceeding pro se with an application for a writ of habeas corpus
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pursuant to 28 U.S.C. § 2254.
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On November 19, 2012, the Court issued an order denying the petition and declining to issue
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a certificate of appealability. Judgment was entered on the same date and the case was closed. On
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December 12, 2012, Petitioner filed a pleading entitled “Notice of Intent to File a Request for COA.”
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Despite the Court already having declined issuance of a certificate of appealability, Petitioner stated
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he intended to file a petition for certificate of appealability at some point in the future. No action
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was taken on the notice insofar as the case was closed and the intent of the pleading was merely to
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notify the Court of Petitioner’s intent to file something in the future.
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On April 30, 2013, Petitioner filed the instant “Application for Certificate of Appealability.”
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U .S. D istrict C ourt
E. D . C alifornia

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He states he filed a notice of appeal on December 9, 2012, and he requests a certificate of

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appealability. Petitioner is advised that a notice of appeal was not received on December 9, 2012, or

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any date thereafter. The only pleading received from Petitioner since the petition was denied was the

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above-noted notice of his intent to file a request in the future. The instant request for certificate of

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appealability is moot as the Court declined to issue a certificate on November 19, 2012. However, as

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Petitioner states he seeks to appeal to the Ninth Circuit, the Court will construe his motion for

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certificate of appealability as a notice of appeal.

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ORDER

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Accordingly, IT IS HEREBY ORDERED:

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1) Petitioner’s motion for certificate of appealability is CONSTRUED as a notice of appeal;
and

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2) The Clerk of Court is DIRECTED to process the appeal to the Ninth Circuit Court of

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Appeals.

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IT IS SO ORDERED.

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Dated:
0m8i78

May 28, 2013
SENIOR DISTRICT JUDGE

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U .S. D istrict C ourt
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