Hayes v. D.K. Sisto

Filing 36

ORDER signed by Magistrate Judge John F. Moulds on 08/08/11 denying as moot 35 Motion for Certificate of Appealability in light of Judge Shubb's 03/11/11 issuance of a certificate. Although plaintiff's notice of appeal appears to be untimely, the clerk of the court is directed to forward the notice to the Ninth Circuit Court of Appeals. (Plummer, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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CLARENCE JOSEPH HAYES,
Petitioner,

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No. 2:09-cv-2433-WBS-JFM (HC)

Respondent.

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ORDER

vs.
D.K. SISTO,

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On March 11, 2011, the Honorable William B. Shubb adopted the undersigned’s

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findings and recommendations recommending that respondent’s motion to dismiss be granted

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and this action be dismissed with prejudice. Also on March 11, 2011, Judge Shubb issued a

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certificate of appealability on the issue of whether petitioner should be allowed to amend his

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petition. Judgment was entered accordingly.

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On June 8, 2011, petitioner filed a document titled “Application for Certificate of

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Appealability.” The court construes this motion as a notice of appeal and a request for a

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certificate of appealability.

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Upon review of the document and the docket, IT IS HEREBY ORDERED that:

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1. Plaintiff’s request for a certificate of appealability is denied as moot in light of

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Judge Shubb’s March 11, 2011 issuance of a certificate; and
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2. Although plaintiff’s notice of appeal appears to be untimely, see Fed. R. App.

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P. 4, the Clerk of the Court is directed to forward the notice to the Ninth Circuit Court of

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Appeals.

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DATED: August 8, 2011.

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/014;haye2433.coa

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