Unpublished Dispositionharold Williams, Petitioner-appellant, v. Theodore Koehler, Respondent-appellee, 849 F.2d 610 (6th Cir. 1988)

ORDER

This matter is before the court upon consideration of the appellant's response to this court's March 1, 1988, order directing him to show cause why his appeal should not be dismissed for lack of jurisdiction.

Petitioner's petition for a writ of habeas corpus was denied by the district court on April 29, 1986. No appeal was ever taken from the denial of the writ. On November 23, 1987, petitioner filed an application for a certificate of probable cause. On December 26, 1986, the district court granted petitioner's application for a certificate of probable cause. Petitioner now argues that the granting of this certificate of probable cause was actually an implicit grant of an extension of time in which to file his notice of appeal. Whether or not we construe the district court's order granting a certificate of probable cause in the manner suggested or not, it is, in any event, ineffective to extend the time in which a claim of appeal must be filed. A claim of appeal must be timely filed whether a certificate of probable cause has been issued or not. If a timely notice of appeal is filed and is not accompanied by a certificate of probable cause pursuant to the provisions of Rule 22(b) of the Federal Rules of Appellate Procedure, the claim of appeal will also be construed as an application for the issuance of a certificate of probable cause by this court. A petitioner cannot avoid the time limits for filing a claim of appeal by delaying the time in which to seek a certificate of probable cause.

Accordingly, it is ORDERED that this appeal be and hereby is dismissed for lack of jurisdiction. Rule 9(b) (1), Rules of the Sixth Circuit.