Falls v. Yates

Filing 61

ORDER DENYING Petitioner's 59 Motion for Evidentiary Hearing signed by Magistrate Judge Sandra M. Snyder on 10/6/2010. (Bradley, A)

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(HC) Falls v. Yates Doc. 61 1 2 3 4 5 6 7 8 9 EASTERN DISTRICT OF CALIFORNIA 10 11 DAVID ALLEN FALLS, 12 13 14 15 16 17 Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus 18 pursuant to 28 U.S.C. 2254 on interlocutory appeal to the Ninth Circuit Court of Appeal. 19 On July 21, 2010, Petitioner filed a notice of appeal of the Court's orders denying motions 20 for extension of time and appointment of counsel. On July 29, 2010, the appeal was processed and 21 the record was transmitted to the Ninth Circuit Court of Appeals where the appeal is currently 22 pending. 23 On September 29, 2010, Petitioner filed the instant motion for evidentiary hearing. Petitioner 24 is advised that the notice of appeal effectively deprived this Court of jurisdiction to rule on 25 Petitioner's motion. Generally, the filing of a notice of appeal divests the district court of 26 jurisdiction with respect to all matters involved in the appeal. Griggs v. Provident Consumer 27 Discount Co., 459 U.S. 56, 58 (1982) (per curiam); Bermudez v. Duenas, 936 F.2d 1064, 1068 (9th 28 U . S . D is t r ic t C o u r t E. D . C a lifo r n ia cd UNITED STATES DISTRICT COURT ) ) Petitioner, ) ) v. ) ) JAMES A. YATES, ) ) Respondent. ) ____________________________________) 1:08-CV-01729 OWW SMS HC ORDER DENYING PETITIONER'S MOTION FOR EVIDENTIARY HEARING [Doc. #59] 1 Dockets.Justia.com 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 U . S . D is t r ic t C o u r t E. D . C a lifo r n ia Cir.1991); Gould v. Mutual Life Insurance Company of New York, 790 F.2d 769, 772 (9th Cir.1986); Scott v. Younger, 739 F.2d 1464, 1466 (9th Cir.1984); Davis v. United States, 667 F.2d 822, 824 (9th Cir.1982). Because the appeal is pending in the Ninth Circuit, this Court is without jurisdiction to rule on Petitioner's motion. Accordingly, the Motion for Evidentiary Hearing is DENIED. IT IS SO ORDERED. Dated: icido3 October 6, 2010 /s/ Sandra M. Snyder UNITED STATES MAGISTRATE JUDGE cd 2

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