                                                                             FILED
                            NOT FOR PUBLICATION                              AUG 04 2014

                                                                         MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                        U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


DAMONE L. HICKS,                                 Nos. 12-55379
                                                      13-56906
               Petitioner - Appellant,
                                                 D.C. Nos. 2:11-cv-07369-DDP
  v.                                                       2:12-cv-03451-DDP

RANDY GROUNDS, Warden,                           MEMORANDUM*

               Respondent - Appellee.


                    Appeal from the United States District Court
                       for the Central District of California
                    Dean D. Pregerson, District Judge, Presiding

                              Submitted July 22, 2014**

Before:        GOODWIN, CANBY, and CALLAHAN, Circuit Judges.

       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

          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
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 pendency 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.

       In Appeal No. 13-56906, Hicks appeals from the denial of his section 2254

habeas petition on the merits in district court case number 2:12-cv-03451. Hicks’s

motions for judicial notice and to file documents under seal are granted. Having

considered the merits of Hicks’s claim, we deny the request for a certificate of

appealability. See 28 U.S.C. § 2253(c)(2). All other motions are denied as moot.

       Appeal No. 12-55379: DISMISSED.

       Appeal No. 13-56906: DENIED.




                                             2                           12-55379 & 13-56906
