Johnson v. Sisto et al

Filing 56

ORDER denying 52 Motion to Remand signed by Judge Morrison C. England, Jr on 9/17/12. (Kaminski, H)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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OSHAY JOHNSON,
Petitioner - Appellant,

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v.

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No. 2:08-cv-00496-MCE-CKD
Ninth Circuit Case No. 10-16202

VIRNAL SINGH, et al,

ORDER RE: PETITIONER’S MOTION
FOR THE DISTRICT COURT TO
ENTERTAIN LIMITED REMAND

Defendant.

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Petitioner, Oshay Johnson, moved for this Court to entertain limited remand from

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the appellate court “to fully consider all the facts considered by the jury along with the

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evidence [Petitioner] submitted in his 28 U.S.C. § 2254 petition.” (ECF No. 52 at 1.)

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Petitioner additionally argues that this Court should entertain limited remand because,

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while the appeal has been pending, the Ninth Circuit decided Lee v. Lampert, 653 F.3d

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929, 931 (9th Cir. 2001), which this Court had not taken into consideration on the issue

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of the applicability of an “equitable exception” to Petitioner’s actual innocence claim.

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(ECF No. 52 at 2.)

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“[T]he filing of a notice of appeal generally divests the trial court of jurisdiction”.

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In re Silberkraus, 336 F.3d 864, 869 (9th Cir. 2003). However, pursuant to Federal Rule

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of Civil Procedure 62.1, upon a timely motion for relief that is barred by a pending

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appeal, the district court may (1) defer considering the motion; (2) deny the motion; or

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(3) state either that it would grant the motion if the court of appeals remands for that

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purpose or that the motion raises a substantial issue. If the district court issues an

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“indicative ruling” stating that it would grant the motion or that the motion raises a

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substantial issue, a movant must notify the circuit clerk and the court of appeals may

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remand for further proceedings. Fed. R. Civ. P. 62.1(b); Fed. R. App. P. 12.1; Advisory

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Committee Notes to Fed. R. Civ. P. 62.1(b). However, a district court may issue such an

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“indicative ruling” under Rule 62.1 only in response to a party’s “timely motion” asking

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the court to reconsider an order that the court cannot reconsider because of the pending

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appeal (usually a Rule 60(b) motion to vacate a judgment pending on appeal).

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Fed. R Civ. P. 62.1(b); Advisory Committee Notes to Fed. R. Civ. P. 62.1(b).

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Petitioner in this case has not filed any “timely motion” for relief. In essence,

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Petitioner asks this Court to “[re]consider [Petitioner’s] actual innocence claims prior to

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submitting the opening brief to the Ninth Circuit panel” because, in Petitioner’s opinion,

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the Court failed to fully consider the relevant facts and relevant law when it issued its

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judgment in this matter. [See ECF No. 52 at 1-2.] Petitioner’s motion, if proper at all,

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falls within either Rule 60(b)(1),(2) (motion for relief from final judgment on the grounds

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of mistake, inadvertence, surprise, or excusable neglect, or newly discovered evidence),

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or Rule 59(a) (motion for new trial). However, a motion under Rule 60(b)(1) or (2) must

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be made no more than a year after the entry of the judgment or order, Fed. R. Civ. P.

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60(c), and a motion under Rule 59(a) must be filed no later than 28 days after the entry

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of judgment. Fed. R. Civ. P. 59(b). Petitioner filed the present motion to entertain

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limited remand on July 30, 2012 - more than two years after the Court’s April 29, 2010,

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judgment in this matter. Thus, regardless of the procedural nature of Petitioner’s

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underlying motion, the motion is not “timely.”
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Therefore, the Court DENIES Petitioner’s motion to entertain limited remand.

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IT IS SO ORDERED.

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Dated: September 17, 2012

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__________________________________
MORRISON C. ENGLAND, JR
UNITED STATES DISTRICT JUDGE

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DEAC_Signature-END:

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c4d6b0d3

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