Gutierrez v. Barnes

Full title: HERIBERTO GUTIERREZ, Petitioner, v. RON BARNES, WARDEN Respondent.

Court: United States District Court, Ninth Circuit, California, E.D. California

Date published: Jun 27, 2013

2:12-cv-02421 GGH P (E.D. Cal. Jun. 27, 2013)

Opinion

HERIBERTO GUTIERREZ, Petitioner, v. RON BARNES, WARDEN Respondent. No. 2:12-cv-02421 GGH P United States District Court, E.D. California. June 27, 2013

          ORDER

          GREGORY G. HOLLOWS, Magistrate Judge.

         Petitioner has filed a request to correct the record and a request for a Certificate of Appealability (COA). The undersigned responds to both requests in this order.

         Petitioner noted that on page 1, line 20 of the Order adjudicating this case (Dkt. # 24), the word "daughter" appears and the correct word is "son." Normally, this would be an easy correction to make. However, petitioner has also appealed the Order, and the requested correction, implicitly made pursuant to Fed.R.Civ.P. 60(a) (correction of clerical errors), can only now be made with leave of the appellate court. Id . If such leave is granted, the undersigned will make the correction expeditiously. However, the clerical error is of no consequence to any issue adjudicated, and it may be that the appellate court will simply note the error and proceed with the appeal.

         With respect to the COA request, the Order expressly granted a COA only as to the [supplemental] jury instruction issue. See Rules, 2254 Cases, Rule 11(a). A further COA is neither necessary nor appropriate.

         Accordingly, the Motion to Correct the Record (Dkt.) #27 is denied without prejudice pending appellate court approval; the Request for a Certificate of Appealability (Dkt. #28) is denied as unnecessary.