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Marcellus Motley v. Mathew Cate

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


January 13, 2011

MARCELLUS MOTLEY,
PETITIONER,
v.
MATHEW CATE, RESPONDENT.

The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge

ORDER

Petitioner, a state prisoner proceeding pro se, brought this petition for a writ of habeas corpus pursuant to 28 U.S.C. -§ 2254. Pursuant to the written consent of all parties, this case is before the undersigned as the presiding judge for all purposes, including entry of final judgment. See 28 U.S.C. -§ 636(c). Final judgment was entered on November 23, 2010. Pursuant to Rule 11(a) of the Federal Rules Governing Section 2254 Cases, the court considered whether to issue a certificate of appealability at the time of entry of final judgment and declined to do so. Now pending before the court are: (1) petitioner's motion for a certificate of appealability (Doc. 25); and (2) petitioner's motion for leave to proceed in forma pauperis (Doc. 26).

As to petitioner's motion for a certificate of appealability, that request will be denied as unnecessary because the court considered the issue in the November 23, 2010, final order and declined to issue a certificate of appealability. Petitioner's motion, however, will be construed as a notice of appeal and the Clerk of the Court will be directed to process the appeal to the Ninth Circuit Court of Appeals accordingly.*fn1 As to petitioner's motion for leave to proceed in forma pauperis, that request will be denied without prejudice to renewing the motion in the Ninth Circuit if necessary.

Accordingly, IT IS HEREBY ORDERED that:

1. For the reasons discussed in the November 23, 2010, final order, the court declines to issue a certificate of appealability;

2. As a motion for a certificate of appealability, petitioner's motion (Doc. 25) is denied;

3. Petitioner's motion (Doc. 25) is construed as a notice of appeal from the court's November 23, 2010, final judgment;

4. The Clerk of the Court is directed to process the appeal forthwith;

5. Petitioner's motion for leave to proceed in forma pauperis (Doc. 26) is denied without prejudice to renewal in the Court of Appeal is necessary; and

6. The Clerk of the Court is directed to terminate all pending motions in this docket, which remains closed.


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