Thomas v. Palmer et al

Filing 47

ORDER re 45 Motion for Certificate of Appealability. Clerk shall treat motion as notice of appeal and process appeal accordingly. Motion for certificate of appealability 45 is denied to the extent that petitioner is seeking certific ate of appealability. Motion for appointment of counsel 46 is denied. (E-mail notice (NEF) sent to the US Court of Appeals, Ninth Circuit.) Signed by Judge Larry R. Hicks on 12/29/14. (Copies have been distributed pursuant to the NEF - JC)

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UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

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DANIEL WILLIAM THOMAS,

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Petitioner,

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vs.

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Case No. 3:09-cv-00633-LRH-VPC

JACK PALMER, et al.,

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ORDER

Respondents.

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On November 20, 2014, this court denied the petition for a writ of habeas corpus. Order

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(#43). On December 9, 2014, petitioner mailed to the court of appeals a motion for a certificate of

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appealability (#45) and a motion for appointment of counsel (#46). The court of appeals has

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forwarded both motions to this court.

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Petitioner has not filed a separate notice of appeal, and this court will construe the motion

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for a certificate of appealability as a timely filed notice of appeal. See Tinsley v. Borg, 895 F.2d

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520, 523 (9th Cir. 1990) (construing request for probable cause as notice of appeal); Fed. R. Civ. P.

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4(c) (mailbox rule for prisoners). Nothing in the motion itself causes the court to depart from its

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determination that a certificate of appealability should not issue.

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Petitioner’s motion for appointment of counsel (#46) is a matter better addressed by the
court of appeals.

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IT IS THEREFORE ORDERED that the clerk of the court shall treat the motion for a

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certificate of appealability (#45) as a notice of appeal and process the appeal accordingly.

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///

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IT IS FURTHER ORDERED that the motion for a certificate of appealability (#45) is
DENIED in part to the extent that petitioner is seeking a certificate of appealability.

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IT IS FURTHER ORDERED that the motion for appointment of counsel (#46) is DENIED.

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DATED this 29th day of December, 2014.

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_________________________________
LARRY R. HICKS
UNITED STATES DISTRICT JUDGE

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