Alastair P. Sims v. United States

244 F.3d 509, 2001 U.S. App. LEXIS 4551, 2001 WL 288710

Opinion

ORDER

Alastair 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.

On 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.

The proper procedure when a district court denies a certificate of appeal-ability 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. See Fed. 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.

Upon consideration, we conclude that the rule concerning certificates of appeala-bility 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. Sims may pursue the issuance of a certificate of appealability in Case. No. 00-4081.

The appeal in Case No. 00-4507 is dismissed for lack of jurisdiction.