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Moore v. Clark

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


June 4, 2010

WILLIAM MOORE, PETITIONER,
v.
KEN CLARK, RESPONDENT.

The opinion of the court was delivered by: Barbara Jacobs Rothstein U.S. District Court Judge

ORDER DENYING PETITIONER'S REQUEST FOR A CERTIFICATE OF APPEALABILITY AND MOTION FOR RECONSIDERATION

This matter comes before the court on the following two motions filed by Petitioner on May 12, 2010: (1) Request for a Certificate of Appealability, and (2) Request for Reconsideration of Denial. Petitioner is a California state prisoner who filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 in the United States District Court for the Eastern District of California. The matter was transferred to this court on March 2, 2010.

Petitioner filed the present motions in response to this court's April 16, 2010 Order denying his February 23, 2009 Motion to Suppress, Protect and Intervene and his January 29, 2010 Motion for Extraordinary Relief. In those motions Petitioner argued that the California District Attorney's Office is plotting to kill his extended family in retaliation for his niece's testimony on his behalf at his criminal trial. He also claimed that agents from the District Attorney's Office kidnapped his wife and step-daughter and "brainwashed" them into acting against Petitioner.*fn1 This court denied the motions because the allegations lacked any factual support and he failed to state a legally cognizable claim.*fn2

In the present motions, Petitioner requests that the court issue a certificate of appealability pursuant to 28 U.S.C. § 2253(c)(2) so that he may appeal the April 16th Order, and, simultaneously, requests that the court reconsider its April 16th ruling. A certificate of appealability is required to appeal "the final order in a habeas proceeding in which the detention complained of arises out of process issued by a state court." See Wilson v. Bellequ, 554 F.3d 816, 824 (9th Cir. 2009). This court has not issued a final ruling on the petition for writ of habeas corpus. Accordingly, a certificate of appealability is not warranted and will not be issued.

Likewise, Petitioner's motion for reconsideration must be denied. Not only was the motion filed well after the fourteen day time limitation imposed by Local Rule 7(h) expired, but Petitioner failed to show either manifest error or raise new facts or legal authority that could not, with reasonable diligence, have been brought to the court's attention earlier.*fn3 Based on the foregoing, it is HEREBY ORDERED that Petitioner's Request for a Certificate of Appealability and Motion for Reconsideration of Denial are DENIED.


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