Opinion
Civ. S-05-1558 DFL DAD.
August 3, 2006
ORDER
Petitioner is a former state prisoner proceeding pro se with a § 2254 petition that he filed on June 28, 2005. Petitioner filed an amended petition on May 1, 2006. On May 8, 2006, the court filed an order stating that the amended petition would be disregarded. Petitioner filed a notice of interlocutory appeal on May 15, 2006.
Under 28 U.S.C. § 2253, a certificate of appealability is warranted only if the case presents a "substantial question," i.e., one that is "`debatable among jurists of reason,'" could be resolved differently by a different court, or is "`adequate to deserve encouragement to proceed further.'" Jennings v. Woodford, 290 F.3d 1006, 1010 (9th Cir. 2002) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 (1983)).
This case does not present such a "substantial question." The magistrate judge is attempting to manage the case in a sensible fashion. He has called for respondent to answer the petition already on file. By filing an amended petition, petitioner confuses the pleadings, and the magistrate judge acted within his proper discretion in striking the amended petition. Petitioner may make a motion to file an amended petition at the appropriate time. Accordingly, petitioner's request for certificate of appealability is DENIED.
IT IS SO ORDERED.