NECESSITY OF CERTIFICATE OF APPEALABILITY (COA)In Richard Fine's case, Judge John F. Walter's final order said simply:
An appeal from either the denial of a writ of habeas corpus under §2254 or from a §2255 motion cannot proceed in the Court of Appeals unless a district or circuit judge issues, or denies a request to issue, a certificate of appealability (COA).
A request for a certificate of appealability should first be made to the district court judge who rendered the judgment denying the writ, or who denied the §2255 motion. The district court judge will either issue a certificate of appealability or state the reasons why a certificate should not issue. Often this language is contained in the order disposing of the writ or motion. The district court should then forward the certificate or statement to the Court of Appeals together with the Notice of Appeal.
IT IS ORDERED: (1) that the Report and Recommendation of the United States Magistrate Judge be accepted; (2) that judgment be entered denying the petition and dismissing this action with prejudice; and (3) that the following motions be dismissed as moot in light of this order: ...Judge Walter's Judgment simply said:
IT IS ADJUDGED that the petition for writ of habeas corpus is denied and the action dismissed with prejudice.The USDC docket shows:
#34 - 7/1/2009 - PETITION for Certificate of Appealability to USDC by petitioner Richard I. Fine; filed as Notice of Appeal to 9th [Circuit] from district court judgment, [docket # 31 filed 06/29/2009]. cc: Richard I. Fine; Attorney General. Modified on 7/6/2009. (Entered: 07/06/2009)As of today, the document posted online as Richard's request for a Certificate of Appealability on PACER is identical to the one we filed; there are no modifications to it. The only other "modification" would be USDC's conversion to a "Notice of Appeal", but there is no such document in the docket.
NOWHERE in the 9th Circuit's docket do we see the 9th Circuit's receipt of the USDC's "Notice of Appeal" or issuance of its July 10th notification letter back to USDC informing it that it must rule on the request for Certificate of Appealability. And NOWHERE in the USDC docket do we see any order about converting the Certificate to a "Notice of Appeal".
As the USDC has been aware since Monday, July 13th, the 9th Circuit is refusing to set a briefing schedule and the appeal is stayed, absent an emergency, "until the district court and, if necessary, this court determine whether a certificate of appealability should issue."
Richard's request for a Certificate of Appealability was filed on June 29th. Now, almost three weeks later, the USDC has yet to rule. Strangely, a copy of the Request was forwarded by the USDC to the Attorney General, which was the first we learned there was any interest by the AG other than its intent to review of SBX2-11 at the behest of the Commission on Judicial Performance (which was later "withdrawn"). Why is the USDC court purposefully delaying? Are they waiting for some other development? Is "Son of SBX2-11" being drawn up during this week's emergency secret legislative sessions? Are you waiting to see how the superior court rules in response to the Sturgeon hearing held on Monday? (Having worked for 3 years on the case, one wouldn't think the judge could have any legitimate reason to take under advisement the motion for temporary injunction to stop the payments to judges.)
The USDC may someday claim their delay is due to the requests for recusals filed against Judge Walter and Magistrate Judge Woehrle, but the requests weren't submitted until July 9th. (The docket reveals that the requests were converted to motions for disqualification, and assigned on July 13th to Judge George H. King for determination.)
28 U.S.C. § 2253, the controlling statute, is no help in that it contains no deadline for making such a ruling. http://www.law.cornell.edu/uscode/28/usc_sec_28_00002253----000-.html
The bottom line seems to be this: USDC is deliberately delaying its obligation to timely set forth with particularity why Richard Fine's case is appealable. The court has admitted its agreement that the case is appealable by sending up the Notice of Appeal and the entire court record to the 9th Circuit. (See docket.) And they do these things regularly, there's no legitimate reason for three weeks to have passed.
A decent man is sitting in jail ... unjustly ... day in and day out for FOUR AND A HALF MONTHS now ... while each week, it seems, a new judge takes a crack at embarrassing the judiciary in increasingly novel ways. There may well be no decent judges involved, for a moral one would long ago have put a stop to the campaign to cover up the uncoverable and deal with the mistakes made and criminal acts committed. Unless faith in the honesty of the judiciary can somehow be restored ... quickly ... the long-term consequences of such chicanery right in our faces is a collective insult that will be remembered with disgust every time the subject of judicial integrity is raised.
116 F.3d 1268
Upon the filing of a notice of appeal and a request for a certificate of appealability, the district court shall indicate which specific issue or issues satisfy the standard for issuing a certificate, or state its reasons why a certificate should not be granted. 28 U.S.C. § 2253(c)(3). If no express request is made for a certificate of appealability, the notice of appeal shall be deemed to constitute a request for a certificate. Finally, if the district court declines to issue a certificate, the Clerk of the district court shall forward to this court the case file with the notice of appeal, the district court's final order, and the order denying the certificate. Id. Accordingly, we remand this case to the district court for the limited purpose of granting or denying a certificate of appealability within 42 days of this order.________________
CERTIFICATE OF APPEALABILITY DENIED
If the district court judge has denied the certificate of appealability, the appellant may request the issuance of a certificate of appealability by the Ninth Circuit Court of Appeals, by making a formal motion.