Demone Hicks v. Randy Grounds
Opinion
Opinion
MEMORANDUM
In these related appeals, Damone L. Hicks appeals from the district court’s judgments denying his 28 U.S.C. § 2254 habeas corpus petitions.
In Appeal No. 12-55379, we granted a certificate of appealability as to “(1) whether the district court erred in concluding that appellant’s challenge to the sufficiency of evidence supporting Count Five was not properly exhausted on the grounds that he failed to explicitly raise the federal aspect of his claim, [ ... ] and (2) whether the district court erred in dismissing appellant’s Second Amended Habeas petition pursuant to Sherwood v. Tomkins, 716 F.2d 632, 634 (9th Cir.1983).” We agree with the parties that the district court erred in dismissing Hicks’s petition. However, the remedy this court would provide is to remand for consideration of the claims on the merits, and during the pen-dency of this appeal, the district court already considered those claims on the merits in case number 2:12-cv-03451 and denied relief. Hicks’s request for a certificate of appealability in that case is pending before this court in Appeal No. 13-56906. Accordingly, we dismiss the appeal as moot.