Trice v. McDonald

Filing 77

ORDER terminating 74 Motion for Reconsideration and denying 75 Motion for Extension of Time to file a Notice of Appeal signed by District Judge Lawrence J. O'Neill on 5/6/2015. (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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11 KEVIN LAQUAN TRICE,

Case No. 1:11-cv-00951-LJO-SKO-HC

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ORDER TERMINATING PETITIONER’S
MOTION FOR RECONSIDERATION
(DOC. 74)

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v.

Petitioner,

14 MARTIN BITER, Warden,
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Respondent.
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ORDER DENYING PETITIONER TRICE’S
MOTION FOR AN EXTENSION OF TIME TO
FILE A NOTICE OF APPEAL (DOC. 75)

17 TOMMY NICHOLS,
Petitioner,

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v.

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22 SCOTT FRAUENHEIM, Warden,
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Respondent.

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Petitioner Kevin Laquan Trice is a state prisoner who proceeded

26 pro se and in forma pauperis with a consolidated petition for writ
27 of habeas corpus pursuant to 28 U.S.C. § 2254.

On March 3, 2015,

28 the petition was denied, and judgment was entered in favor of
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1 Respondent.

On March 16, Petitioner filed 1) a motion for an

2 extension of time to file a notice of appeal, which was granted
3 until May 2, 2015, and 2) a motion to extend time to file a motion
4 for reconsideration of the judgment, which was denied.

On April 20,

5 2015, Petitioner filed a motion for reconsideration of the judgment.
6 The Court has not ruled on the motion for reconsideration because
7 the time for filing opposition to the motion has not expired.
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On May 5, 2015, Petitioner filed a second motion for extension

9 of time to file a notice of appeal (doc. 75) as well as a notice of
10 appeal.

Because of the nature of the motions and their procedural

11 posture, the Court exercises its discretion to consider the motions
12 on an ex parte basis.

See Fed. R. App. P. 4(a)(5)(B).

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I.

Order Terminating the Motion for Reconsideration

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The filing of a timely notice of appeal transfers jurisdiction

15 to the appellate court over the appealable orders and judgments that
16 are encompassed by the notice, and it removes jurisdiction from the
17 district court.
18 1995).

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

With respect to this Court’s consideration of a motion

19 pursuant to Rule 60 to vacate a judgment that is the subject of a
20 pending appeal, the law has recently been summarized:
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Once an appeal is filed, the district court no longer has
jurisdiction to consider motions to vacate judgment. Gould
v. Mut. Life Ins. Co. of N.Y., 790 F.2d 769, 772 (9th
Cir.1986). However, a district court may entertain and
decide a Rule 60(b) motion after notice of appeal is filed
if the movant follows a certain procedure, which is to
“ask the district court whether it wishes to entertain the
motion, or to grant it, and then move this court, if
appropriate, for remand of the case.” Id. (internal
quotation marks and citations omitted); see also Defenders
of Wildlife v. Bernal, 204 F.3d 920, 930 (9th Cir.2000)
(holding that a district court order declining to
entertain or grant a Rule 60(b) motion is not a final
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determination on the merits); Scott v. Younger, 739 F.2d
1464, 1466 (9th Cir.1984) (holding that the district
court's denial of a request to entertain a Rule 60(b)
motion is interlocutory and not appealable and that if the
court is inclined to grant the motion, the movant first
should request limited remand from the appellate court);
Crateo, Inc. v. Intermark, Inc. (In re Crateo, Inc.), 536
F.2d 862, 869 (9th Cir.1976) (declining to order a remand
after the district court declined to entertain the Rule
60(b) motion).
Davis v. Yageo Corp., 481 F.3d 661, 685 (9th Cir. 2007).

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Here, to the extent that Petitioner’s motion could be

10 considered a request to this Court to entertain Petitioner’s motion,
11 the Court is not inclined to consider or to grant Petitioner’s
12 motion for relief from the judgment.
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Accordingly, the Clerk is DIRECTED to terminate Petitioner’s
motion for relief from the judgment.
II.

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Order Denying Petitioner’s Motion for Extension of Time
to File a Notice of Appeal

As the Court noted in its previous order granting an extension

18 of time to file a notice of appeal, further extension of the
19 deadline is not permitted by the rules.
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Fed. R. App. P. 4(a)(5)(C).

Further, because Petitioner’s notice of appeal has been filed,

21 Petitioner’s motion for an extension of time to file a notice of
22 appeal is moot.
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Accordingly, Petitioner’s motion for an extension of time to

24 file a notice of appeal is DENIED.
25 IT IS SO ORDERED.
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Dated:

/s/ Lawrence J. O’Neill

May 6, 2015

UNITED STATES DISTRICT JUDGE

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