High v. Napier, CV-17-00565-TUC-DCB. (2019)
Court: District Court, D. Arizona
Number: infdco20190603551
Visitors: 8
Filed: May 30, 2019
Latest Update: May 30, 2019
Summary: ORDER DAVID C. BURY , District Judge . The Court denied Petitioner habeas relief and entered Judgment on May 2, 2019. The Petitioner filed a Notice of Appeal on May 14, 2019. On May 28, 2019, the Ninth Circuit Court of Appeals issued on Order directing this Court "to issue or decline to issue a certificate of appealability in this appeal, which appears to arise under 28 U.S.C. 2254." (Doc. 48.) The Court treated the case as arising under 28 U.S.C. 2241 because the Petitioner is out of custo
Summary: ORDER DAVID C. BURY , District Judge . The Court denied Petitioner habeas relief and entered Judgment on May 2, 2019. The Petitioner filed a Notice of Appeal on May 14, 2019. On May 28, 2019, the Ninth Circuit Court of Appeals issued on Order directing this Court "to issue or decline to issue a certificate of appealability in this appeal, which appears to arise under 28 U.S.C. 2254." (Doc. 48.) The Court treated the case as arising under 28 U.S.C. 2241 because the Petitioner is out of custod..
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ORDER
DAVID C. BURY, District Judge.
The Court denied Petitioner habeas relief and entered Judgment on May 2, 2019. The Petitioner filed a Notice of Appeal on May 14, 2019. On May 28, 2019, the Ninth Circuit Court of Appeals issued on Order directing this Court "to issue or decline to issue a certificate of appealability in this appeal, which appears to arise under 28 U.S.C. 2254." (Doc. 48.) The Court treated the case as arising under 28 U.S.C. 2241 because the Petitioner is out of custody and, instead, issued a certificate of appealability based on a finding that any appeal would be taken in good faith. Correspondingly, the Court issues a certificate of appealability, pursuant to Rule 11(a) of the Rules Governing Section 2254 Cases.
Accordingly,
IT IS ORDERED that issuance of a Certificate of Appealability and leave to proceed in forma pauperis on appeal are GRANTED, based on the Court's findings as follow:
1. The Petitioner has made a substantial showing of the denial of a constitutional right with respect to Claim 3: Double Jeopardy, and
2. The dismissal of Claims 1, 3 and 4 was justified by a plain procedural bar and jurists of reason would not find the procedural ruling debatable.
IT IS FURTHER ORDERED that the Clerk of Court shall forthwith notify the parties of the entry of this Order regarding Certificate of Appealability and In Forma Pauperis Status on Appeal.
IT IS FURTHER ORDERED that the Clerk of the Court shall send a copy of this Order to the Ninth Circuit Court of Appeals.
Source: Leagle
