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244 F.3d 509 (6th Cir. 2001)
Alastair P. Sims, Petitioner-Appellant,
v.
United States of America, Respondent-Appellee.No. 00-4507
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
Filed: March 23, 2001
1Alastair P. Sims, Lewisburg, PA, pro se.
2Michael J. Burns, Asst. U.S. Attorney, Columbus, OH, for respondent-appellee.
3Before: DAUGHTREY and GILMAN, Circuit Judges; COLLIER, District Judge*.
4Alastair Sims, a federal prisoner, seeks to appeal from a district court order denying Sims a certificate of appealability in this motion to vacate sentence case. See 28 U.S.C. § 2255. We conclude that this court lacks jurisdiction over Sims's appeal.
5On August 4, 2000, the district court entered a judgment denying Sims's motion for §2255 relief. Sims filed a notice of appeal from the judgment, and that appeal is currently before the court docketed as Case No. 00-4081. Subsequently, the district court denied Sims's application for a certificate of appealability. See 28 U.S.C. § 2253(c)(1). Sims filed a notice of appeal from this order, giving rise to the current appeal.
6The proper procedure when a district court denies a certificate of appealability is for the petitioner to file a motion for a certificate of appealability before the appellate court in the appeal from the judgment denying the motion to vacate. SeeFed. R. App. P. 22(b)(1). While this court has not ruled upon the issue of the appealability of an order denying a certificate of appealability, authority from the Ninth Circuit indicates that the order is nonappealable. See Greenawalt v. Stewart, 105 F.3d 1268 (9th Cir. 1997). The Greenawalt case arose under the law in effect before the passage of the Antiterrorism and Effective Death Penalty Act, when a petitioner was required to obtain a certificate of probable cause. The Ninth Circuit held that an order denying a certificate of probable cause was not an appealable order. Id. at 1272.
7Upon consideration, we conclude that the rule concerning certificates of appealability should be the same as the rule governing certificates of probable cause, and we hold that an order denying a certificate of appealability is not appealable. Simsmay pursue the issuance of a certificate of appealability in Case. No. 00-4081.
8The appeal in Case No. 00-4507 is dismissed for lack of jurisdiction.
Notes:
*The Honorable Curtis L. Collier, United States District Judge for the Eastern District of Tennessee, sitting by designation.
Document Info
Docket Number: 00-4507
Citation Numbers: 244 F.3d 509
Judges: Collier, Daughtrey, Gilman
Filed Date: 3/23/2001
Precedential Status: Precedential
Modified Date: 8/5/2023