Maldonado v. Yates et al

Filing 25

ORDER Disregarding 24 Motion for Certificate of Appealability, signed by Magistrate Judge Gary S. Austin on 3/21/14. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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BILLY RAE MALDONADO,

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1:11-cv-01735-LJO-GSA-PC

Plaintiff,

ORDER DISREGARDING MOTION FOR
CERTIFICATE OF APPEALABILITY
(Doc. 24.)

vs.
JAMES YATES, et al.,
Defendants.

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Billy Rae Maldonado (APlaintiff@) is a state prisoner proceeding pro se in this civil rights
action pursuant to 42 U.S.C. ' 1983.

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On June 13, 2013, the Court dismissed this action based on Plaintiff's failure to state a

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claim upon which relief may be granted under § 1983, and judgment was entered. (Docs. 19,

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20.) On February 28, 2014, Plaintiff filed a notice of appeal to the Ninth Circuit Court of

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Appeals, which was assigned case number 14-15465. (Docs. 21, 23.) On March 20, 2014,

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Plaintiff filed a motion for a certificate of appealability pursuant to Rule 22 of the Federal

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Rules of Appellate Procedure. (Doc. 24.)

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Rule 22 of the Federal Rules of Appellate Procedure requires that an applicant who files

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a notice of appeal in a habeas proceeding must obtain a certificate of appealability under 28

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U.S.C. ' 2253(c), or a statement why a certificate should not issue, from the district judge who

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rendered judgment in the action. Fed. R. App. P. 22(b) (emphasis added). Plaintiff requests a
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certificate of appealability for the appeal he filed in this action. However, because Plaintiff=s

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appeal concerns a civil rights action under ' 1983 and not a habeas proceeding, Rule 22 is not

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applicable. Therefore, Plaintiff=s motion for a certificate of appealability shall be disregarded.

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Plaintiff is advised that his appeal was processed and forwarded to the Ninth Circuit on March

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11, 2014. (Doc. 22.)

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Based on the foregoing, IT IS HEREBY ORDERED that Plaintiff=s motion for a
certificate of appealability, filed on March 20, 2014, is DISREGARDED.

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IT IS SO ORDERED.
Dated:

March 21, 2014

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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