David E. Faught, Petitioner-appellant, v. Michael J. Montgomery, Respondent-appellee, 891 F.2d 290 (6th Cir. 1989)

ORDER

This appeal has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit.

A review of the documents before the court indicates that the judgment denying a petition for writ of habeas corpus was entered September 11, 1989. On September 14, 1989, appellant filed a notice of appeal (appeal no. 89-6188) and application for certificate of probable cause. Certificate of probable cause was denied by the district court on September 27, 1989, and by this court on October 13, 1989. On October 17, 1989, appellant filed a notice of appeal (appeal no. 89-6336) from the September 27 district court order denying certificate of probable cause.

Fed. R. App. P. 22(b) provides that when a certificate of probable cause is denied by the district court that the appellant may either file an application for certificate of probable cause in the appellate court or the notice of appeal may be treated as such. The appropriateness of the issue of a certificate of probable cause was previously considered and denied in appeal no. 89-6188. Therefore, appeal no. 89-6336 from the district court's denial is moot because such matter has already been considered by this court.

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