Parvin v. Cate

Filing 34

ORDER signed by Magistrate Judge John F. Moulds on 6/28/2010 ORDERING petitioner's 32 motion for COA is DENIED; and the clerk to send a copy of this order to the USCA Ninth Ciruit. (cc: Ninth Circuit)(Yin, K)

(HC) Parvin v. Cate

Doc. 34

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 vs. MATTHEW CATE, et al., Respondents. / Petitioner is a state prisoner proceeding pro se with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter is proceeding before a United States Magistrate Judge with the consent of the parties pursuant to 28 U.S.C. § 636(c). See Consents to Jurisdiction by United States Magistrate Judge, filed August 19, 2009 and October 23, 2009. On March 23, 2010, petitioner timely filed a notice of appeal of this court's March 1, 2010 dismissal of his application for a writ of habeas corpus as barred by the statute of limitations together with a motion for a certificate of appealability. See 28 U.S.C. § 2253(c); Rule 11, 28 U.S.C. foll. § 2254; Fed. R. App. P. 22(b). By order filed March 30, 2010, petitioner's motion for a certificate of appealability was denied. Petitioner's appeal was processed to the United States Court of Appeals for the Ninth Circuit on the same day. ///// 1
Dockets.Justia.com

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA JOHN ALAN PARVIN, Petitioner, No. 2:09-cv-2198-JFM (HC)

ORDER

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On April 27, 2010, petitioner filed a notice of appeal from the March 30, 2010 order, together with a motion for a certificate of appealability issued by a district court judge. While the United States Court of Appeals for the Ninth Circuit has authority concurrent with this court to issue or deny a certificate of appealability, see 28 U.S.C. § 2253(c), the March 30, 2010 order is not an appealable order. Moreover, pursuant to the consent of the parties this court had the authority to direct the entry of judgment in this action, see 28 U.S.C. § 636(c), and jurisdiction over this action now lies in the United States Court of Appeals for the Ninth Circuit. For that reason, petitioner's April 27, 2010 motion for issuance of a certificate of appealability by a district court judge will be denied. In accordance with the above, IT IS HEREBY ORDERED that: 1. Petitioner's April 27, 2010 motion is denied; and 2. The Clerk of the Court is send a copy of this order to the United States Court of Appeals for the Ninth Circuit. DATED: June 28, 2010.

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