Filed: Feb. 05, 2015
Latest Update: Feb. 05, 2015
Summary: ORDER [Re: Motions at Docket Nos. 35, 36, 37] JAMES K. SINGLETON, Jr., Senior District Judge. This Court denied Robert Charles Peck, Jr., a state prisoner proceeding pro se, habeas relief and a certificate of appealability ("COA") on December 15, 2014. Docket Nos. 33, 34. At Docket No. 38, Peck filed a timely notice of appeal dated December 23, 2014, and received by this Court on December 29, 2014. Peck simultaneously filed a motion for an extension of time to file a request for a COA with t
Summary: ORDER [Re: Motions at Docket Nos. 35, 36, 37] JAMES K. SINGLETON, Jr., Senior District Judge. This Court denied Robert Charles Peck, Jr., a state prisoner proceeding pro se, habeas relief and a certificate of appealability ("COA") on December 15, 2014. Docket Nos. 33, 34. At Docket No. 38, Peck filed a timely notice of appeal dated December 23, 2014, and received by this Court on December 29, 2014. Peck simultaneously filed a motion for an extension of time to file a request for a COA with th..
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ORDER [Re: Motions at Docket Nos. 35, 36, 37]
JAMES K. SINGLETON, Jr., Senior District Judge.
This Court denied Robert Charles Peck, Jr., a state prisoner proceeding pro se, habeas relief and a certificate of appealability ("COA") on December 15, 2014. Docket Nos. 33, 34. At Docket No. 38, Peck filed a timely notice of appeal dated December 23, 2014, and received by this Court on December 29, 2014. Peck simultaneously filed a motion for an extension of time to file a request for a COA with the Ninth Circuit Court of Appeals. Docket No 37. This Court lacks the authority to extend the time to file such a request with that court. See FED. R. APP. P. 22(b)(1). Nonetheless, the records before this Court indicate that Peck filed with this Court a motion for a COA dated January 13, 2015. Docket No. 35. His COA motion was therefore timely under Ninth Circuit Rule 22-1(d) even without an extension of time. See 9TH CIR. R. 22-1(d) ("If the district court denies a COA as to all issues, petitioner may file a motion for a COA in the court of appeals within 35 days of the district court's entry of its order. . . ."). Because this Court has already denied Peck a COA, however, it appears that Peck inadvertently filed his motion with this Court rather than the Court of Appeals.
Peck also moves for leave to appeal in forma pauperis from this Court's order denying his habeas petition. Docket No. 36. Such motion is unnecessary as there is no filing fee required for a state prisoner to appeal from the denial of a petition for a writ of habeas corpus under 28 U.S.C. § 2254 where the district court has denied a COA in full. Naddi v. Hill, 106 F.3d 275, 277 (9th Cir. 1997).
IT IS THEREFORE ORDERED THAT the motions for an extension of time and for leave to appeal in forma pauperis, filed at Docket Nos. 36 and 37, are DENIED as moot.
IT IS FURTHER ORDERED THAT the Clerk of Court is directed to transfer Peck's Motion for a Certificate of Appealability at Docket No. 35 to the Ninth Circuit Court of Appeals.
