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Walton v. State

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


August 5, 2010

ARTHUR LEE WALTON, PETITIONER,
v.
STATE OF CALIFORNIA, RESPONDENT.

ORDER

Petitioner is a state prisoner without counsel seeking a writ of habeas corpus. See 28 U.S.C. § 2254. This case is before the undersigned pursuant to the parties' consents.

Petitioner has filed a motion for a certificate of appealability, as well as a notice of interlocutory appeal, from the Clerk of the Court's denial of petitioner's request for entry of default. Dckt. Nos. 23, 24, 25.

The court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant. Rule 11, Rules Governing § 2254 cases. Here, the court declines to issue a certificate of appealability because the court has not entered a final order adverse to petitioner. Rather, respondent has submitted an answer in response to the petition, and the matter is now submitted for decision. See Dckt. No. 18.

Pursuant to 28 U.S.C. § 1292(b), the court may certify a question for appeal based an order not otherwise appealable if the "order involves a controlling question of law as to which there is substantial ground for difference of opinion and [ ] an immediate appeal from the order may materially advance the ultimate termination of the litigation." The Clerk of the Court properly declined petitioner's request for entry of default. Accordingly, the court declines to certify any question for appeal and the Clerk is directed to terminate docket entries 24 and 25.

So ordered.

20100805

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