Martinez v. Howard
Filing
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ORDERED: Petitioner's Motion for Reconsideration (Doc. 31 ) is dismissed. Signed by Judge Rosemary Marquez on 1/17/2023. (ARC)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE DISTRICT OF ARIZONA
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Daniel Martinez,
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Petitioner,
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v.
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Catricia Howard,
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No. CV-21-00230-TUC-RM
ORDER
Respondents.
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Pending before the Court is Petitioner Daniel Martinez’s (“Petitioner”) Motion for
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Reconsideration. (Doc. 31.) On November 9, 2022, this Court issued an Order adopting the
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Report and Recommendation (“R&R”) which denied Petitioner’s Petition for Writ of
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Habeas Corpus and Motion for Preliminary Injunction while overruling Petitioner’s
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objection. (Doc. 26.)1 Specifically, the Court found that Petitioner’s sentence of
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imprisonment was correctly calculated under 18 U.S.C. § 3584(a). (Id. at 5.)
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On December 22, 2022, Petitioner appealed this Court’s November 9, 2022 Order
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to the Ninth Circuit Court of Appeals. (Doc. 28.) Petitioner’s Notice of Appeal was
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received by the Ninth Circuit the following day. (Doc. 30.)
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On December 29, 2022, a week after filing his Notice of Appeal, Petitioner filed a
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Motion for Reconsideration in this Court requesting that the Court reconsider its November
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9, 2022 Order. (Doc. 31.) Petitioner argues the Court erred in holding that Reynolds v.
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Thomas, 603 F. 3d 1144 (9th Cir. 2010) was no longer controlling law, and that this case’s
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The Background from the Court’s November 9, 2022 Order is incorporated by reference
into this Order.
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interpretation of 18 U.S.C. § 3584(a) justified Petitioner’s immediate release from the
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Bureau of Prisons. (Id.)
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The filing of a notice of appeal “confers jurisdiction on the court of appeals and
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divests the district court of its control over those aspects of the case involved in the appeal.”
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Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58 (1982). The district court is
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therefore without jurisdiction to respond to a motion for reconsideration if filed after the
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filing of a notice of appeal. United States v. Vroman, 997 F.2d 627, 627 (9th Cir. 1993).
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Because Petitioner filed his Motion for Reconsideration a week after filing his Notice of
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Appeal, this Court may not properly entertain Petitioner’s Motion. Accordingly,
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Petitioner’s Motion for Reconsideration must be dismissed for lack of jurisdiction.
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IT IS ORDERED
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Petitioner’s Motion for Reconsideration (Doc. 31) is dismissed.
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Dated this 17th day of January, 2023.
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