Fox v. Sherman

Filing 28

ORDER signed by Magistrate Judge Gregory G. Hollows on 8/25/2017 ORDERING the Clerk shall treat (ECF No. 27 ) as a notice of appeal and take action accordingly to process it to the Ninth Circuit. (cc: Ninth Circuit)(Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MICHAEL ALLAHRAE FOX,

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Petitioner,

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No. 2:15-cv-2561 JAM GGH P

v.

ORDER

STU SHERMAN,

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Respondent.

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The petition for writ of habeas corpus was denied on June 29, 2017, and judgment entered

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accordingly on June 29, 2017. Petitioner filed a motion for appointment of counsel (ECF No. 27)

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on August 4, 2017. The motion for appointment of counsel includes a statement, among other

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things, of having requested a Certificate of Appealability (COA).

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A pro se, post-judgment filing, even if not denominated as a notice of appeal, will be

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treated as such if it appears that the essential purpose of the filing was to appeal. Brannon v.

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United States, 993 F.2d 709, 710 (9th Cir. 1993), citing Rabin v. Cohen, 570 F.2d 864, 866 (9th

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Cir. 1978). It appears to the undersigned that the inference to be drawn from asking for counsel

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after judgment has been entered, along with reference to a COA (although a COA has already

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been denied in this case by the district judge), evinces an intent to appeal, and the filing will be

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treated as such.

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The undersigned further notes that the filing was dated July 1, 2017, although the

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document was not filed until August 4, 2017. If the document was delivered to prison authorities

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for mailing on or before July 29, 2017 (a very likely event), it would also be a timely notice of

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appeal. Houston v. Lack, 487 U.S. 286 (1988).

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Accordingly, the Clerk shall treat ECF No. 27 as a notice of appeal and take action
accordingly to process it to the Ninth Circuit.

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After receiving notice of the receipt of the appeal by the Ninth Circuit, i.e., being

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informed of the appellate case number, petitioner shall ask the Ninth Circuit for a COA, and shall

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address any requests for counsel to the Ninth Circuit as well.

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IT IS SO ORDERED.
Dated: August 25, 2017
/s/ Gregory G. Hollows
UNITED STATES MAGISTRATE JUDGE

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