Magana-Torres v Harrington

Filing 51

ORDER signed by Magistrate Judge Dennis M. Cota on 05/07/19 DENYING 43 Motion for Extension of time because the court has declined to issue a certificate of appealability and DENYING 50 Motion to Proceed IFP without prejudice to seeking relief as necessary in the appellate court. (cc: USCA, 9th circuit) (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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JOSE HUMBERTO MAGANA-TORRES,

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Petitioner,

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No. 2:10-CV-2669-WBS-DMC-P

v.

ORDER

KELLY HARRINGTON,

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Respondent.

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Petitioner, a state prisoner proceeding pro se, brought this petition for a writ of

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habeas corpus pursuant to 28 U.S.C. § 2254. Final judgment was entered on July 6, 2012 (ECF

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No. 32) and petitioner’s appeal from that judgment has been dismissed by the Ninth Circuit Court

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of Appeals for lack of jurisdiction (ECF No. 37) because petitioner raised issues not encompassed

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by the district court’s certificate of appealability and the appellate court declined to expand the

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certificate of appealability to encompass the issues raised by petitioner.
Thereafter, petitioner filed in this court a motion for relief from judgement, which

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the court denied on March 4, 2019 (ECF No. 42). Petitioner again appealed and the Ninth Circuit

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remanded the matter for the limited purpose of granting or denying a certificate of appealability

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as to the denial of relief from judgment (ECF No. 48). On April 8, 2019, the District Judge

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assigned to this case declined to issue a certificate of appealability.

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Pending before the court are: (1) petitioner’s motion (ECF No. 43) for an

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extension of time to file a request for a certificate of appealability; and (2) petitioner’s motion for

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leave to proceed in forma pauperis, presumably on appeal (ECF No. 50). Petitioner’s motion for

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an extension of time is denied as moot because the court has declined to issue a certificate of

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appealability. Petitioner’s motion for leave to proceed in forma pauperis is denied without

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prejudice to seeking relief as necessary in the appellate court.

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IT IS SO ORDERED.

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Dated: May 7, 2019
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DENNIS M. COTA
UNITED STATES MAGISTRATE JUDGE

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