May v. Ratelle

Full title: Alan Neff MAY, Petitioner-Appellant, v. John RATELLE, Warden; Richard J…

Court: United States Court of Appeals, Ninth Circuit

Date published: Apr 18, 2001

8 F. App'x 653 (9th Cir. 2001)

Opinion

8 Fed.Appx. 653 (9th Cir. 2001) Alan Neff MAY, Petitioner-Appellant, v. John RATELLE, Warden; Richard J. Donovan, Correctional Facility; Daniel E. Lungren, Attorney General, Attorney General of the State of California, Respondents-Appellees. Alan Neff May, Petitioner-Appellant, v. Cal Terhune, Respondent-Appellee. Nos. 99-56632, 01-55255. D.C. Nos. CV-98-01460-MLH., CV-99-02379-IEG. United States Court of Appeals, Ninth Circuit. April 18, 2001

Submitted April 9, 2001. ^*

* The panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2).

NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)

Appeal from the United States District Court for the Southern District of California Marilyn L. Huff, District Judge, Presiding.

Appeal from the United States District Court for the Southern District of California Irma E. Gonzalez, District Judge, Presiding.

Before CANBY, KOZINSKI and RYMER, Circuit Judges.

MEMORANDUM ^**

** This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by 9th Cir. R. 36-3.

In Appeal No. 99-56632, ¹ Alan Neff May appeals pro se the district court's dismissal of his 28 U.S.C. § 2254 habeas petition for failure to exhaust. We have jurisdiction pursuant to 28 U.S.C. § 2253.

1 We consolidate Appeal Nos. 99-56632 and 01-55255 because they originate from the same district court habeas proceeding and involve the same petitioner.

Because May concedes that the issue he raises on appeal is moot, we dismiss that portion of this consolidated appeal. See Allard v. DeLorean, 884 F.2d 464, 466 (9th Cir.1989) (stating "[i]f events subsequent to filing of an appeal moot the issues presented in a case, no justiciable controversy is presented.").

Page 654.

In Appeal No. 01-55255, May requests a certificate of appealability ("COA") from the district court's subsequent denial of his habeas petition on the merits. Because May's claims fail on the merits, we deny the request for a COA. See 28 U.S.C. § 2253(c)(2). ²

2 Accordingly, May's motion for appointment of counsel in Appeal No. 01-55255 is denied.

Appeal No. 99-56632 is therefore DISMISSED as moot. The request for a COA in Appeal No. 01-55255 is DENIED. No further filings shall be accepted in this closed consolidated appeal.