Davidson v. Miller

Filing 41

ORDER DENYING 38 Motion for Certificate of Appealability ; Clerk to Transmit ECF No. 38 to Ninth Circuit Court of Appeals, signed by District Judge Anthony W. Ishii on 09/18/17. (Martin-Gill, S)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 TOMMY DAVIDSON, Petitioner, 10 11 12 13 Case No. 1:14-cv-00745-AWI-MJS (HC) ORDER DENYING MOTION FOR CERTIFICATE OF APPEALABILITY v. RAYMOND MADDEN, Warden, CLERK TO TRANSMIT ECF NO. 38 TO NINTH CIRCUIT COURT OF APPEALS Respondent. (ECF NO. 38) 14 15 16 17 Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas 18 corpus pursuant to 28 U.S.C. § 2254. On June 8, 2017, the Court denied the petition and 19 declined to issue a certificate of appealability. (ECF No. 35.) 20 On June 20, 2017, Petitioner filed a notice of appeal and a motion requesting a 21 certificate of appealability. (ECF Nos. 37 and 38.) 22 appealability is ambiguous because it lists the court as “United States District Court, 23 Ninth Circuit of Appeals Court.” Doc. No. 38. However, the motion is entitled “Motion 24 For Certificate Of Appealability Following Denial of COA Request By District Court.” The 25 motion also states that it is direct to “Panel Assigned To Consider Whether Or Not To 26 Issue Certificate Of Appealability.” Id. 27 28 The motion for a certification of 1 As this Court has already declined to issue a certificate of appealability,1 and 2 considering the above quoted language, Petitioner misfiled his motion with this Court. 3 Because Petitioner is attempting to obtain a certificate of appealability from the Ninth 4 Circuit, the Court will direct the Clerk to forward Petitioner’s motion to the Ninth Circuit. 5 6 ORDER 7 Accordingly, because Petitioner seeks a certificate of appealability from the Ninth 8 Circuit Court of Appeals, the Clerk of Court is HEREBY DIRECTED to transmit 9 Petitioner’s motion for a certificate of appealability (Doc. No. 38) to the Ninth Circuit 10 Court of Appeals. 11 12 13 IT IS SO ORDERED. Dated: September 18, 2017 SENIOR DISTRICT JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 The Court’s June 8, 2017 Order, including the decision to decline to issue a certificate of appealability, remains in full effect. 2

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