United States of America v. Smith

Filing 83

ORDER that Plaintiff Robert F. Smith's request for a Certificate of Appealability is moot, re: 12-16801, as to 80 Notice of Appeal. Signed by Judge David G Campbell on 9/7/12. (LSP)

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 United States of America, Plaintiff, 10 11 12 No. CV-10-2358-PHX-DGC ORDER v. Robert F. Smith, Defendant. 13 14 15 Defendant Robert F. Smith filed a request for a certificate of appealability of the 16 Court’s order of June 18, 2012, which granted summary judgment to the United States on 17 its action to reduce Mr. Smith’s federal tax assessments to judgment. Doc. 80; see 18 Doc. 77. 19 petitioner in a habeas corpus proceeding receive a certificate of appealability before 20 appealing (Fed. R. App. P. 22(b)), but Mr. Smith appeals from a civil judgment. Federal 21 Rule of Appellate Procedure 4(a) governs the filing of his appeal. Fed. R. App. P. 4(a); 22 see U.S. v. Plechner, 577 F.2d 596 (9th Cir. 1978) (finding that Rule 4(a) governing the 23 filing of appeals in civil cases applied to enforcement of a bond even when appealed from 24 as part of a criminal proceeding). Rule 22(b) of the Federal Rules of Appellate Procedure requires that a 25 Under Rule 4(a)(1)(A), a notice of appeal must be filed with the district clerk 26 within 30 days after the judgment or the order appealed from is entered. Fed. R. App. P. 27 4(a)(1)(A). When, as here, the United States is a party, the notice of appeal may be filed 28 within 60 days. Fed. R. App. P. 4(a)(1)(B). Mr. Smith filed his request on August 15, 1 2012, less than 60 after the order he appeals from was entered, and the Clerk’s Office and 2 the Ninth Circuit Court of Appeals have construed Mr. Smith’s request as a notice of 3 appeal. Docs. 81, 82. The Court need take no further action. See United Nat=l Ins. Co. v. 4 R&D Latex Corp., 242 F.3d 1102, 1109 (9th Cir. 2001) (“Once a notice of appeal takes 5 effect, the district court loses jurisdiction over the matter placed before the appellate 6 court.”). 7 IT IS ORDERED: 8 1. 9 10 Plaintiff Robert F. Smith’s request for a Certificate of Appealability is moot. Dated this 7th day of September, 2012. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -2-

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