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McGee v. Kernan

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA


July 24, 2008

DARRELL MCGEE, PETITIONER,
v.
SCOTT KERNAN, WARDEN, RESPONDENT .

The opinion of the court was delivered by: Jeffrey S. White United States District Judge

ORDER OF DISMISSAL

(Docket No. 2)

Petitioner, a California prisoner, filed this pro se petition requesting a certificate of appealability. Petitioner has also filed a motion to proceed in forma pauperis on appeal(docket no. 2), which is now DENIED as moot. However, while Petitioner's request states that a prior petition for a writ of habeas corpus was denied, Petitioner included no case number on his request and this Court is unaware of any prior case in this Court.

A request for a certificate of appealability is not properly filed as a new matter, as it does not present a new case or controversy. Federal courts have the power and the duty to raise the issue of standing sua sponte and to dismiss the action if standing is wanting. Bernhardt v. County of Los Angeles, 279 F.3d 862, 868 (9th Cir. 2002). Therefore, Petitioner's case is dismissed. If Petitioner wishes to request a certificate of appealability in the district court, he must proceed in the same district court and provide a civil case number from his earlier case.

The clerk shall close the file and enter judgment.

IT IS SO ORDERED.

I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California. That on July 24, 2008, I SERVED a true and correct copy(ies) of the attached, by placing said 14 copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle located in the Clerk's office.

20080724

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