Abston v. Eichenberger

Filing 46

ORDER DISREGARDING 39 Motion to Appoint Counsel; ORDER DISREGARDING as Moot Petitioner's 40 Motion to Proceed IFP; ORDER DISREGARDING Petitioner's 41 Motion for Reconsideration of Order Declining to Issue a Certificate of Appealability, signed by Magistrate Judge Sandra M. Snyder on 7/26/2011. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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NANCY ABSTON,
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Petitioner,
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v.
WARDEN KENT EICHENBERGER,
Respondent.

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1:08-cv—01483-SMS-HC
ORDER DISREGARDING MOTION FOR THE
APPOINTMENT OF COUNSEL (DOC. 39)
ORDER DISREGARDING AS MOOT
PETITIONER’S MOTION TO PROCEED IN
FORMA PAUPERIS (DOC. 40)
ORDER DISREGARDING PETITIONER’S
MOTION FOR RECONSIDERATION OF
ORDER DECLINING TO ISSUE A
CERTIFICATE OF APPEALABILITY
(DOC. 41)

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Petitioner is a state prisoner who proceed pro se and in
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forma pauperis with a petition for writ of habeas corpus pursuant
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to 28 U.S.C. § 2254.

Pursuant to 28 U.S.C. § 636(c)(1), the

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parties have consented to the jurisdiction of the United States
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Magistrate Judge.

On July 28, 2009, the petition was denied, and

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judgment was entered for Respondent.

On August 21, 2009,

Petitioner filed a notice of appeal.

On May 18, 2011, the United

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States Court of Appeals for the Ninth Circuit denied a request
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for a certificate of appealability and denied all pending motions
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as moot; hence, the appeal is still pending.
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(Doc. 38.)

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Pending before this Court are several motions filed after
the notice of appeal was filed.

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I.

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On June 22, 2011, Petitioner filed in this Court a request

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Motion for Appointment of Counsel

for appointment of counsel (doc. 39).

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The motion was addressed to the appellate court.

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the motion was filed after the notice of appeal was filed.

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filing of a timely notice of appeal transfers jurisdiction to the

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appellate court over the appealable orders and judgments that are

Further,
The

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encompassed by the notice, and it removes jurisdiction from the

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district court.

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1995).

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Trulis v. Barton, 107 F.3d 685, 694 (9th Cir.

Because this Court lacks jurisdiction over the request for
counsel, the motion will be disregarded.

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II.

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On June 22, 2011, Petitioner filed a motion to proceed in

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Motion to Proceed in Forma Pauperis

forma pauperis (doc. 40).
On October 8, 2008, this Court granted Petitioner’s

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previously filed motion to proceed in forma pauperis.

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absence of a contrary statutory provision, a party who was

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permitted to proceed in forma pauperis in the district court may

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proceed in forma pauperis on appeal without further authorization

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unless the district court certifies that the appeal is not taken

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in good faith.

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In the

Fed. R. App. P. 24(a)(3).

Thus, Petitioner’s present motion is moot and will be
disregarded.

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III.

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Although it was the Court of Appeals that recently denied

Motion to Reconsider Certificate of Appealability

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Petitioner’s request for a certificate of appealability (doc.

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38), Petitioner filed in this Court on June 22, 2011, a motion

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addressed to this Court seeking reconsideration of the order

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declining a certificate of appealability (doc. 41).

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previously declined to issue a certificate of appealability in

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the order denying the petition that was filed on July 28, 2009.

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Because the appeal is pending before the Court of Appeals,

This Court

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this Court lacks jurisdiction to consider Petitioner’s motion for

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reconsideration.

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Accordingly, the motion will be disregarded.

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IV.

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Accordingly, it is ORDERED that Petitioner’s motion for the

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appointment of counsel, motion to proceed in forma pauperis, and

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motion for reconsideration of the order declining a certificate

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of appealability are DISREGARDED as moot.

Disposition

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IT IS SO ORDERED.

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Dated:
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July 26, 2011

/s/ Sandra M. Snyder
UNITED STATES MAGISTRATE JUDGE

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