Goff v. Salinas

Filing 40

ORDER signed by Senior Judge William B. Shubb on 3/29/2013. Court is DECLINING to issue petitioner's 36 Certificate of Appealability. Petitioner's 38 Motion for Appointment of Counsel is DENIED without prejudice to its renewal before Court of Appeals. (Marciel, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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THOMAS L. GOFF,

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Petitioner,

No. 2:11-cv-3410 WBS GGH P

vs.
M. SALINAS, Warden,

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Respondent.

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ORDER
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Petitioner has requested the appointment of counsel. Because petitioner has filed

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an appeal of this court’s judgment, this court no longer has jurisdiction to entertain petitioner’s

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motion for appointment of counsel. See Pope v. Savings Bank of Puget Sound, 850 F.2d 1345,

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1346 (9th Cir. 1988) (“Filing of the ... notice of appeal divested the district court of further

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jurisdiction over the case.”) Accordingly, the March 13, 2013 motion for appointment of counsel

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will be denied without prejudice to its filing before the proper court.1

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Petitioner has timely filed a notice of appeal of this court's March 1, 2013

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dismissal of his application for a writ of habeas corpus. Before petitioner can appeal this

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decision, a certificate of appealability must issue. 28 U.S.C. § 2253(c); Fed. R. App. P. 22(b).

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Under Federal Rule of Civil Procedure 62.1(2), this court is permitted to deny this
motion filed after an appeal has been docketed and is pending.
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A certificate of appealability may issue under 28 U.S.C. § 2253 “only if the

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applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C.

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§ 2253(c)(2). The court must either issue a certificate of appealability indicating which issues

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satisfy the required showing or must state the reasons why such a certificate should not issue.

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Fed. R. App. P. 22(b).

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Accordingly, IT IS ORDERED that:

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1. For the reasons set forth in the magistrate judge’s February 1, 2013 findings

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and recommendations, petitioner has not made a substantial showing of the denial of a

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constitutional right. Accordingly, the court declines to issue a certificate of appealability in this

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action.

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2. Petitioner’s March 13, 2013 motion for appointment of counsel (Docket No.

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38) is denied without prejudice to its renewal before the court of appeals.

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DATED: March 29, 2013

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/goff3410.830.wpd

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