Timothy Mitchell v. USA
| TIMOTHY MICHAEL MITCHELL |
| UNITED STATES OF AMERICA |
| 15-35669 |
| August 20, 2015 |
| U.S. Court of Appeals, Ninth Circuit |
| Vacate Sentence |
Docket Report
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| Filing 3 Filed order (RONALD M. GOULD and MARY H. MURGUIA) The request for a certificate of appealability is denied because appellant has not shown that jurists of reason would find it debatable whether the [section 2255 motion] states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling. Slack v. McDaniel, 529 U.S. 473, 484 (2000); see also 28 U.S.C. 2253(c)(2); Gonzalez v. Thaler, 132 S. Ct. 641, 648 (2012). Any pending motions are denied as moot. DENIED. [9740000] (WL) [Entered: 10/30/2015 03:30 PM] |
| Filing 2 Filed order (Appellate Commissioner): On May 5, 2015, the district court entered an order referring this matter to this court for consideration as a second or successive habeas corpus petition. Appellants application for authorization to file a second or successive habeas corpus petition is proceeding in this court as docket number 15-71373. Appellant also filed a notice of appeal from that order, which is proceeding in the instant appeal. Appellants August 17, 2015 notice of appeal from that order was timely because it was received in this court on May 27, 2015. See Fed. R. App. P. 4(d). The district court has not issued or declined to issue a certificate of appealability in this appeal, which appears to arise under 28 U.S.C. 2255. Accordingly, pursuant to circuit court policy, this case is remanded to the district court for the limited purpose of granting or denying a certificate of appealability at the court's earliest convenience. See 28 U.S.C. 2253(c); Fed. R. App. P. 22(b); United States v. Asrar, 116 F.3d 1268, 1270 (9th Cir. 1997). If the district court issues a certificate of appealability, the court should specify which issue or issues meet the required showing. See 28 U.S.C. 2253(c)(3); Asrar, 116 F.3d at 1270. Under Asrar, if the district court declines to issue a certificate, the court should state its reasons why a certificate of appealability should not be granted, and the clerk of the district court shall forward to this court the record with the order denying the certificate. See Asrar, 116 F.3d 1270. A new briefing schedule will be established after resolution of the certificate of appealability issue. The Clerk shall send a copy of this order to the district court judge. (Pro Se) [9665228] (CKP) [Entered: 08/30/2015 04:26 PM] |
| Filing 1 Open 9th Circuit docket: No COA order in district court. Record on appeal included: Yes. [9654005][COURT UPDATED: Docket text corrected to reflect no COA order filed. 8/21/15 by JI] (KM) [Entered: 08/20/2015 11:37 AM] |
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| Petitioner: TIMOTHY MICHAEL MITCHELL | |
| Represented By: | Timothy Michael Mitchell |
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| Respondent / appellee: UNITED STATES OF AMERICA | |
| Represented By: | Helen J. Brunner Esquire |
| Represented By: | Bruce Miyake |
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