Spencer v. Fox

Filing 30

ORDER denying 24 Motion for Hearing; denying Motion for Certificate of Appealability; denying 26 Motion for Leave to Appeal in forma pauperis; denying 28 Motion to Extend Time. This Court no longer has jurisdiction to consider the merits of this claim. All further pleadings in this case are properly directed to the Eighth Circuit Court of Appeals. Signed by Judge Kristine G. Baker on 1/17/14. (kpr)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
EASTERN DIVISION
ADDONES SPENCER,
ADC #101747
v.

PETITIONER

Case No. 2:12-cv-00201 KGB/JTR

JOHN FOX, Warden,
FCI-Forrest City

RESPONDENT
ORDER

Before the Court is petitioner Addones Spencer’s motion for evidentiary hearing (Dkt.
No. 24), motion for certificate of appealability, motion for leave to appeal in forma pauperis
(Dkt. No. 26), and motion for extension of time to object to the Proposed Findings and
Recommended Disposition (Dkt. No. 28). Mr. Spencer filed his motion for evidentiary hearing
on October 11, 2013, over a week after this Court entered final judgment in his case on October
2, 2012, adopting the Proposed Findings and Recommended Disposition after no timely
objections were filed (Dkt. No. 23). Therefore, petitioner’s motion for evidentiary hearing is
denied as untimely (Dkt. No. 24). The Court notes that, even if petitioner had timely filed his
motion, the Court, having reviewed the record and having considered the points he raises, would
find no good cause to grant the motion.
As to petitioner’s request for a certificate of appealability, such certificates are not
required in habeas corpus cases brought by federal prisoners solely under 28 U.S.C. § 2241. See,
e.g., Langella v. Anderson, 612 F.3d 938, 939 n.2 (8th Cir. 2010); Swiggart v. Outlaw, 2012 WL
1379123 at *1 n.1 (E.D. Ark. Apr. 20, 2012). Petitioner’s motion for certificate of appealability
is therefore denied as moot.

Petitioner’s motion for leave to appeal in forma pauperis is likewise denied as moot (Dkt.
No. 26). Under Federal Rule of Appellate Procedure 24(a)(3)(A), “a party who was permitted to
proceed in forma pauperis in the district-court action . . . may proceed on appeal in forma
pauperis without further authorization . . . .” Because plaintiff was granted leave to proceed in
forma pauperis in this action, he does not need leave of Court to do so on appeal. See, e.g.,
Frentzel v. Boyer, 2007 WL 1342178 (E.D. Mo. May 3, 2007).
Finally, petitioner’s motion for extension of time to object to the Proposed Findings and
Recommended Disposition is also denied as moot (Dkt. No. 28). Before petitioner filed this
motion, he filed a notice of appeal and an amended notice of appeal (Dkt. Nos. 25, 27). “The
filing of a notice of appeal is an event of jurisdictional significance—it confers jurisdiction on
the court of appeals and divests the district court [of] its control over those aspects of the case
involved in the appeal.” Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58 (1982);
Liddell v. Bd. of Educ. of City of St. Louis, 73 F.3d 819, 822 (8th Cir. 1996). As a general rule,
an appeal to the circuit court divests the district court of jurisdiction as to those issues involved
in the appeal. In re Grand Jury Subpoenas Duces Tecum, 85 F.3d 372, 375 (8th Cir. 1996).
Although this Court would retain jurisdiction had petitioner filed a timely motion to alter or
amend the judgment under Rule 59 of the Federal Rules of Civil Procedure, petitioner did not
timely file any such motion. See Fed. R. App. Proc. 4(a)(4); Griggs, 459 U.S. at 59. Petitioner
alleges, due to his incarceration in the Special Housing Unit, he did not receive timely the
pleadings in order to respond timely. This Court no longer has jurisdiction to consider the merits
of this claim. All further pleadings in this case are properly directed to the Eighth Circuit Court
of Appeals.

SO ORDERED this 17th day of January, 2014.

_____________________________________
UNITED STATES DISTRICT JUDGE