United States District Court, D. Arizona
Honorable David C. Bury United States District Judge
February 6, 2019, the United States Court of Appeals for the
Ninth Circuit issued an Order remanding this case for the
limited purpose of granting or denying a certificate of
appealability. (Order (Doc. 69). In its Order issued on April
26, 2018, dismissing the Petitioner's Petition Under 28
U.S.C. § 2241, this Court found that a certificate of
appealability would not issue in the event the Petitioner
appealed. Judgment was entered on April 26, 2018.
filed a Motion for Reconsideration, which was denied on May
17, 2018. (Order (Doc. 46)).
26, 2018, Plaintiff filed a Notice of Appeal Re: the Order
and Judgment dismissing his case. (Notice of Appeal (Doc.
48.) Plaintiff, nevertheless, continued to file various
motions in this case which this Court denied because the case
was on appeal. On October 22, 2019, the appellate court
issued an Order that the matter was proceeding as a request
for a certificate of appealability. (Doc. 57.) On October 30,
2018, the appellate court issued a Mandate relying on a June
26, 2018, Order wherein it had held that it lacked
jurisdiction because the “order challenged in the April
23, 2018, notice of appeal [was] not final or
appealable” because magistrate judges' findings and
recommendations are not appealable.” (Doc. 58.) This
conclusion may have been an error because this case was never
referred to a magistrate judge and no findings and
recommendations were ever issued herein. On November 16,
2018, the appellate court issued an Order denying a
certificate of appealability. (Doc. 61.) This Court
understood this decision would end the appeal, pending
issuance of a Mandate.
on November 26, 2018, this Court ruled on one of the many
motions filed by Plaintiff during the pendency of the appeal
and denied him leave to renew his Motion for Reconsideration
and to continue his IFP status. (Order (Doc. 62)). Still
pending are: Motion for Release Upon Time Served, . . . (Doc.
63), Notice of Addendum (Doc. 67), and Motion for Complete
Excerpt Request (Doc. 68). He also filed a Notice of Appeal
Re: Doc. 62 which is this Court's Order denying him leave
to renew his Motion for Reconsideration and to continue IFP
status. This Court understands this Order (Doc. 62) to be the
subject of the recent directive from the appellate court to
issue a finding regarding a certificate of appealability.
Court has reviewed the Order issued on November 26, 2018. At
the time the Court denied Plaintiff's request to renew
the motion for reconsideration, the Order denying
reconsideration was on appeal. The Court denied it for this
reason. Since then, the denial of reconsideration has been
affirmed in that the Ninth Circuit Court of Appeals'
decision to not issue a certificate of appealability for
review of this Court's Order denying reconsideration.
(Doc. 61.) Correspondingly, there is no basis for issuing a
certificate of appealability for this Court's Order
denying Plaintiff leave to reurge it, here. The Court also
finds that Plaintiff's repeated filings in case at the
same time he is proceeding on appeal has wasted judicial
resources. For all substantive purposes this case is closed,
and the Court will not allow any further filings to be made
in it unless and until the Ninth Circuit Court of Appeals
should issue a Certificate of Appealability and then reverse
and remand the case for further proceedings. The Court shall
strike all the currently pending motions.
IS ORDERED that the Court does not issue a
Certificate of Appealabilty in this Appeal Re: the denial of
Plaintiff s request to renew his Motion for Reconsideration.
IS FURTHER ORDERED that all pending motions (Docs.
63 and 68) filed in this closed case are STRICKEN.
IS FURTHER ORDERED that the Plaintiff shall not make
any further filings in this case unless or until the Ninth
Circuit Court of Appeals should issue a Certificate of
Appealability and then remand it for further proceedings.
IS FURTHER ORDERED that pursuant to Rule 11(a) of
the Rules Governing Section 2255 Cases, in the event the
Plaintiff files an appeal, the Court declines to issue a
certificate of appealability because reasonable jurists would
not find the Court's procedural ruling debatable. See
Slack v. McDaniel, 529 U.S. 473, 484 (2000). Dated this
6th day of March, 2019.
 Plaintiff filed the Notice of Appeal
prematurely, which was returned by the Ninth Circuit to this
Court and filed in this case by the Clerk of the Court on
April 26, 2018. It was denied because of the ...