Green v. LeGrand et al

Filing 51

ORDER. IT THEREFORE IS ORDERED that 42 petitioner's motion or application for a certificate of appealability is DENIED as unnecessary. The Clerk of Court shall provide electronic notice of this order to the Court of Appeals in the customary manner, in connection with No. 16-16596 in that Court. Signed by Judge Andrew P. Gordon on 10/6/16. (Copies have been distributed pursuant to the NEF - ADR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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DUSHON NICHALOS GREEN,

Case No. 2:14-cv-01388-APG-NJK

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Petitioner,
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ORDER
vs.

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ROBERT LEGRAND, et al.,
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Respondents.

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This pending habeas action by a Nevada state inmate comes before the Court on petitioner's
motion or application (ECF No. 42) for a certificate of appealability (COA).
Petitioner seeks to appeal the interlocutory order (ECF No. 41) denying his motion for
reconsideration of the Court’s orders denying appointment of counsel.

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With deference to the final authority of the Court of Appeals in determining its own jurisdiction,

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it does not appear that there is appellate jurisdiction over this interlocutory order. It is established law

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that an interlocutory order denying a motion for appointment of counsel in a noncapital habeas case is

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not appealable. E.g., Weygandt v. Look, 718 F.2d 952, 953-54 (9th Cir. 1983).

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In any event, a certificate of appealability is not required to pursue an interlocutory appeal,

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assuming, arguendo, the existence of appellate jurisdiction. See Harbison v. Bell, 556 U.S. 180, 183

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(2009)(a COA is required only to appeal a final order in a habeas proceeding, and a COA thus is not

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required to appeal an appealable interlocutory order).

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The application for a COA therefore will be denied as unnecessary.

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IT THEREFORE IS ORDERED that petitioner’s motion or application (ECF No. 42) for a
certificate of appealability is DENIED as unnecessary.
The Clerk of Court shall provide electronic notice of this order to the Court of Appeals in the
customary manner, in connection with No. 16-16596 in that Court.
DATED: October 6, 2016.

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__________________________________
ANDREW P. GORDON
United States District Judge

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