Petitioner is a state prisoner proceeding pro se and in forma pauperis with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. On May 26, 2009, the undersigned issued findings and recommendations recommending that respondent's motion to dismiss this petition as successive be granted and this action be dismissed.
On May 22, 2009, petitioner filed a document entitled "Motion for Certificate of Appealability Following Denial of District Court" in the United States Court of Appeals for the Ninth Circuit using the above case number. On June 8, 2009, that motion was filed in the instant action.
However, judgment has not been entered in the instant action. Indeed, petitioner's time to file objections to the May 26, 2009 findings and recommendations has not yet run.
Review of petitioner's motion indicates that petitioner's motion was dated May 20, 2009, before the findings and recommendations were issued herein. Petitioner is addressing a "clerk's judgment" allegedly entered on May 25, 2007, which petitioner identifies as Docket Nos. 25-26. The instant case has only 22 docket entries and no judgment, clerk's or otherwise, has yet been entered. Petitioner also noted that the judgment incorporated a district court order which adopted findings and recommendations by a Magistrate Judge. To date, no such order has issued in this case.
A review of court records reveals that on May 25, 2007, a district judge denied petitioner's writ of habeas corpus in Case No. 2:03-cv-1275 JKS.*fn1 While that memorandum decision did not adopt findings and recommendations and bears the docket number 21, it denied the habeas petition on the merits and also declined to issue a certificate of appealability. Final judgment in that case is docketed as number 22. Because the district court declined to issue the certificate of appealability in Case No. 2:03-cv-1275 JKS, this court will not re-file petitioner's motion in that case. If petitioner intended to file his motion concerning Case No. 2:03-cv-1275 JKS, he will have to re-file said motion in the Court of Appeals for the Ninth Circuit ensuring that he has used the correct case number.
In the instant action, petitioner's motion is premature. The district court has not entered judgment. Thus, the motion will be denied without prejudice to its renewal once judgment has been entered.
IT IS HEREBY ORDERED that petitioner's June 8, 2009 motion is denied ...