Opinion
00 Civ. 8178 (LAK).
January 9, 2002
ORDER
Petitioner has filed a notice of appeal from the judgment denying the petition.
Having reviewed the file, the Court denies a certificate of appealability because no substantial constitutional question is presented and certifies that any appeal herefrom would not be taken in good faith.
The Court notes also that petitioner, contrary to the statement in the Court's order denying the petition, did file objections to the report and recommendation of the Magistrate Judge. These had not come to the Court's attention and, it appears, were not available on the electronic docket sheet at the time the Court decided the petition. If the Court had jurisdiction, it would treat the objections as an application for reconsideration, grant the application for reconsideration, and decide the petition de novo. The filing of petitioner's notice of appeal, however, arguably divested the Court of jurisdiction to do so. Accordingly, should the Court of Appeals wish to remand the matter for that purpose prior to taking further action on the petitioner's appeal, the Court would proceeds to reconsider the matter in light of petitioner's objections and rule anew.
SO ORDERED.