Robinson v. Cate

Filing 40

ORDER signed by Judge Lawrence K. Karlton on 6/12/2012. Since the 35 Request for Certificate of Appealability directly relate to matters on Appeal, this Court has no jurisdiction to consider them. Accordingly, both the 35 Request and 38 Motion for Reconsideration are DISMISSED. (Marciel, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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CLARK ROBINSON,
NO. CIV. S-10-2089 LKK/CHS

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Petitioner,
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v.

O R D E R

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MATTHEW CATE,
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Respondent.
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Petitioner’s motion for reconsideration will be dismissed, as

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his notice of appeal has divested this court of jurisdiction to

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consider the motion.

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On May 7, 2012, this court denied petitioner’s habeas corpus

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petition, and declined to issue a certificate of appealability.

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The Clerk entered judgment pursuant to the order that same day.

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On May 31, 2012, petitioner filed a Notice of Appeal and a “Request

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for Certificate of Appealability.”

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The filing of the Notice of Appeal “confers jurisdiction on

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the court of appeals and divests the district court of its control

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over those aspects of the case involved in the appeal.” Small v.

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Operative Plasterers' and Cement Masons' International Ass'n Local
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200, 611 F.3d 483, 495 (9th Cir. 2010), citing Griggs v. Provident

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Consumer Disc. Co., 459 U.S. 56, 58 (1982) (per curiam).1

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Since the request for a Certificate of Appealability and the

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Motion for Reconsideration directly relate to matters on appeal,

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this court has no jurisdiction to consider them, and accordingly,

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both are DISMISSED (Dkt. Nos. 35 & 38).

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IT IS SO ORDERED.

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DATED:

June 12, 2012.

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Petitioner filed the Motion for Reconsideration 28 days
after the judgment was entered. Had he filed the motion before
filing the Notice of Appeal, the effective date of the appeal would
have been suspended until the court decided the reconsideration
motion. Fed. R. App. P. 4(a)(4)(A)(vi) & (a)(4)(B)(i);
United Nat.
Ins. Co. v. R&D Latex Corp., 242 F.3d 1102, 1109 (9th Cir. 2001)
(“The notice of appeal in this case did not, however, divest the
district court of jurisdiction at the time it was filed because
there was then a pending motion for reconsideration”) (emphasis
added). Although a pending reconsideration motion would suspend
the effectiveness of a Notice of Appeal – even if it is filed
during the pendency of the reconsideration motion – it does not
appear that such a motion can revoke the effectiveness of an
already-filed Notice of Appeal.
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