Free Order on Motion for Reconsideration - District Court of Arizona - Arizona

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Case 2:03-cv-01072-ROS Document 42 Filed 08/01/2006 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Michael Earl Garland, Petitioner/Appellant, vs.

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No. CV03-1072-PHX-ROS ORDER

On June 29, 2006 Petitioner Michael Earl Garland filed a Notice of Appeal to the Ninth Circuit (Doc. #36) as to this Court's June 20, 2006 Order denying Petitioner's Petition For Writ of Habeas Corpus (Doc. #36). On July 18, 2006 this Court denied the issuance of a Certificate of Appealability ("COA") (Doc. #37). Petitioner now seeks reconsideration of this Order on the basis that the Court improperly treated his Notice of Appeal as a Motion For COA (Doc. #40). Rule 22(b) of the Federal Rules of Appellate Procedure provides, in part If an applicant files a notice of appeal, the district judge who rendered the judgment must either issue a [COA] or state why a certificate should not issue. The district clerk must send the certificate or statement to the court of appeals with the notice of appeal and the file of the district-court proceedings. If the district judge has denied the certificate, the applicant may request a circuit judge to issue the certificate.

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Thus, because this Court has denied the COA, Petitioner must now seek a certificate from the Court of Appeals. In addition, Rule 22(b) provides that "[i]f no express request for a certificate is filed, the notice of appeal constitutes a request addressed to the judges of the court of appeals." Therefore, this Court properly considered Petitioner's Notice of Appeal, which was addressed to the Ninth Circuit, as a COA. For the reasons stated above, Petitioner's Motion will be denied.

Accordingly, IT IS ORDERED that Petitioner's Motion For Reconsideration (Doc. #40) and Motion For Certificate of Appealability (Doc. #41) are DENIED.

DATED this 31st day of July, 2006.

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