Kenneth Brown v. J. Soto
| KENNETH MANCIL BROWN |
| J. SOTO, Warden |
| 15-56257 |
| August 18, 2015 |
| U.S. Court of Appeals, Ninth Circuit |
| Habeas Corpus |
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| Filing 6 Filed order (EDWARD LEAVY and RICHARD A. PAEZ): The request for a certificate of appealability is denied because appellant has not shown that jurists of reason would find it debatable whether the petition 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. [9880993] (AF) [Entered: 02/26/2016 03:41 PM] |
| Filing 5 Received copy of District Court order filed on 10/01/2015 Denying certificate of appealability. [9704468] (JFF) [Entered: 10/01/2015 03:59 PM] |
| Filing 4 Filed order (Appellate Commissioner): The court has received and reviewed appellants response to this courts August 19, 2015 order to show cause. Appellant attests that he delivered the notice of appeal to prison authorities on July 31, 2015, within 30 days after entry of the district courts judgment. See 28 U.S.C. 2107(a); Fed. R. App. P. 4(a)(1)(A), (c)(1). Accordingly, the order to show cause is discharged. 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. 2254. Accordingly, 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) [9677295] (CKP) [Entered: 09/10/2015 08:10 AM] |
| Filing 3 Filed Appellant Kenneth Mancil Brown letter dated re: Declaration of Kenneth M. Brown. Paper filing deficiency: None. [9672823] (JFF) [Entered: 09/04/2015 11:36 AM] |
| Filing 2 Filed clerk order (Deputy Clerk: JW): The district court judgment was entered on the docket on July 9, 2015. Appellants notice of appeal from that judgment was dated July 29, 2015, but was not filed until August 11, 2015. Thus, the notice of appeal was not filed within 30 days after the entry of the judgment. See 28 U.S.C 2107(a); Fed. R. App. P. 4(a)(1). Because appellant is a pro se prisoner, however, the notice of appeal is deemed filed when it was delivered to prison authorities for forwarding to the court. See Fed. R. App. P. 4(c)(1); Houston v. Lack, 487 U.S. 266, 270 (1988). Accordingly, within 21 days after the date of this order, appellant shall file with this court a declaration or notarized statement attesting to the date on which the notice of appeal was deposited in the institutions internal mail system and whether first-class postage was prepaid, or otherwise show cause why this appeal should not be dismissed for lack of jurisdiction. See Fed. R. App. P. 4(c)(1); Douglas v. Noelle, 567 F.3d 1103 (9th Cir. 2009). A response may be filed within 10 days after service of appellants declaration. If appellant does not comply with this order, the Clerk shall dismiss this appeal pursuant to Ninth Circuit Rule 42-1. Briefing is suspended pending further order of this court. [9652385] (CKP) [Entered: 08/19/2015 11:05 AM] |
| Filing 1 Open 9th Circuit docket. No COA order in district court. Record on appeal included: No. [9650506] (FB) [Entered: 08/18/2015 09:47 AM] |
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| Petitioner / appellant: KENNETH MANCIL BROWN | |
| Represented By: | Kenneth Mancil Brown |
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| Respondent / appellee: J. SOTO, Warden | |
| Represented By: | State Attorney General |
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