May v. Ratelle , 8 F. App'x 653 ( 2001 )

MEMORANDUM ^**

In Appeal No. 99-56632,¹ Alan Neff May appeals pro se the district court’s dismissal of his 28 U.S.C. § 2254 habeas petition for failure to exhaust. We have jurisdiction pursuant to 28 U.S.C. § 2253.

Because May concedes that the issue he raises on appeal is moot, we dismiss that portion of this consolidated appeal. See Allard v. DeLorean, 884 F.2d 464, 466 (9th Cir.1989) (stating “[i]f events subsequent to filing of an appeal moot the issues presented in a case, no justiciable controversy is presented.”).

In Appeal No. 01-55255, May requests a certificate of appealability (“COA”) from the district court’s subsequent denial of his habeas petition on the merits. Because May’s claims fail on the merits, we deny the request for a COA. See 28 U.S.C. § 2253(c)(2).²

Appeal No. 99-56632 is therefore DISMISSED as moot. The request for a COA in Appeal No. 01-55255 is DENIED. No further filings shall be accepted in this closed consolidated appeal.

** This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by 9th Cir. R. 36-3.

1 . We consolidate Appeal Nos. 99-56632 and 01-55255 because they originate from the same district court habeas proceeding and involve the same petitioner.

2 . Accordingly, May's motion for appointment of counsel in Appeal No. 01-55255 is denied.