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McKenzie v. Yates

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


November 10, 2008

MARK EDDIE MCKENZIE, PETITIONER,
v.
JAMES A. YATES, WARDEN, RESPONDENT.

The opinion of the court was delivered by: Arthur L. Alarcón United States Circuit Judge Sitting by Designation

ORDER

Petitioner Mark McKenzie ("Petitioner") filed a timely notice of appeal on October 31, 2008 but did not request a certificate of appealability at that time. (Doc. 21). The Court thus deemed the notice of appeal as constituting a certificate of appealability. (Doc. 22). See United States v. Asrar, 108 F.3d 217, 218 (9th Cir. 1997) ("If no express request is made for a certificate of appealability, the notice of appeal shall be deemed to constitute a request for a certificate."). On November 4, 2008, after reviewing all of the claims raised in Petitioner's application for a writ of habeas corpus, the Court concluded "that reasonable jurists might disagree with [the] conclusion that the trial court's erroneous statement during voir dire examination that the court would have the discretion to grant "straight probation" to the Petitioner did not render 'the trial so arbitrary and fundamentally unfair that it violated due process.'" (Id.) (quoting Jammal v. Van de Kamp, 926 F.2d 918, 920 (9th Cir. 1991). The Court issued a certificate of appealability as to that single issue.

On November 5, 2008, Petitioner filed a motion for a certificate of appealability. (Doc. 25). In coming to its decision to issue the certificate as to the aforesaid issue, the Court considered the remaining issues Petitioner seeks to appeal, as set forth in his motion for a certificate of appealability. The Court concluded that no certificate of appealability shall issue as to the remaining issues.

Accordingly, IT IS HEREBY ORDERED that Petitioner's request for a certificate of appealability be denied as moot.

20081110

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