Zepeda v. The United States of America (Congress)

Filing 17

ORDER TERMINATING 16 Motion for Relief From Judgment, signed by District Judge Anthony W. Ishii on 2/27/2014. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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11 JAIME L. ZEPEDA,

Case No. 1:13-cv-01086-AWI-BAM-HC

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ORDER TERMINATING MOTION FOR RELIEF
FROM JUDGMENT (DOC. 16)

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Petitioner,
v.

15 THE UNITED STATES OF AMERICA
(CONGRESS),
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Respondent.
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Petitioner is a state prisoner who proceeded pro se and in
forma pauperis with a petition for writ of habeas corpus pursuant to
28 U.S.C. § 2254.

Pending before the Court is Petitioner’s motion

for relief from the judgment entered in this proceeding on November
15, 2013, pursuant to the Court’s dismissal of the petition as
successive.

(Docs. 11, 12.)

On December 13, 2013, Petitioner filed a notice of appeal from
the judgment, and the appeal is presently pending.

(Docs. 13, 14.)

Thereafter, Petitioner filed the instant motion for relief from the
judgment, in which Petitioner challenges the Court’s decision
dismissing the petition.

(Doc. 16, 4.) .
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The filing of a timely notice of appeal transfers jurisdiction

2 to the appellate court over the appealable orders and judgments that
3 are encompassed by the notice, and it removes jurisdiction from the
4 district court.
5 1995).

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

With respect to this Court’s consideration of a motion

6 pursuant to Rule 60 to vacate a judgment that is the subject of a
7 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
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).

22 Davis v. Yageo Corp., 481 F.3d 661, 685 (9th Cir. 2007).
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Here, petitioner’s petition was dismissed as successive.
Court lacks jurisdiction over Petitioner’s motion.

This

To the extent

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that Petitioner’s motion could be considered a request to this Court

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1 judgment.
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Accordingly, the Clerk is DIRECTED to terminate Petitioner’s
motion for relief from the judgment.

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IT IS SO ORDERED.

7 Dated: February 27, 2014
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SENIOR DISTRICT JUDGE
DEAC_Signature-END:

9h0d30bb

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