Martha v. Contra Costa County

Filing 32

ORDER DENYING POST-JUDGMENT MOTIONS 22 26 27 28 (Illston, Susan) (Filed on 3/21/2014)

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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 NORTHERN DISTRICT OF CALIFORNIA 7 8 GEORGE N. MARTHA, 9 10 United States District Court For the Northern District of California 11 12 13 No. C 13-5401 SI (pr) Petitioner, ORDER DENYING POSTJUDGMENT MOTIONS v. ICE GOVERNMENT; et al., Respondents. / 14 15 Petitioner filed this pro se action for a writ of habeas corpus, apparently to challenge a 16 final order of the United States Department of Immigration and Customs Enforcement (“I.C.E.”) 17 that he be removed from the United States and sent to Israel. In an order filed December 10, 18 2013, the court explained that the REAL ID Act of 2005 made the United States Court of 19 Appeals the sole judicial body able to review challenges to final orders of removal, and 20 dismissed the petition without prejudice to petitioner filing a petition for review in the United 21 States Court of Appeals for the Ninth Circuit. The court later denied petitioner's motion for 22 reconsideration. Petitioner then filed a notice of appeal. 23 This matter is now before the court for consideration of petitioner's several post-judgment 24 motions. Petitioner's motion to terminate the I.C.E. case (Docket # 22) and motion for jury trial 25 on the dismissal (Docket # 26) are DENIED because the existence of the pending appeal divests 26 this court of jurisdiction over those aspects of the case involved in the appeal. See Griggs v. 27 Provident Consumer Discount Co., 459 U.S. 56, 58 (1982) (it is "generally understood that a 28 federal district court and a federal court of appeals should not attempt to assert jurisdiction over 1 a case simultaneously"); Pope v. Savings Bank of Puget Sound, 850 F.2d 1345, 1347 (9th Cir. 2 1988). Assuming arguendo that this court retains jurisdiction to decide the collateral matters of 3 a motion for appointment of counsel and for a fee waiver, the motions will be denied. 4 Petitioner's motion to appoint counsel (Docket # 27) is DENIED because the interests of justice 5 are not served by appointing counsel after a case has been dismissed. See 18 U.S.C. § 6 3006A(a)(2)(B) (appointment of counsel appropriate when "the court determines that the 7 interests of justice so require"). Petitioner's motion to waive fees (Docket # 28) is DENIED 8 because the court does not have authority to waive the filing fees for an appeal. The denial of 9 these motions is without prejudice to petitioner filing them again in the Ninth Circuit. All 10 11 12 further motions should be made to the Ninth Circuit while the appeal is pending. IT IS SO ORDERED. DATED: March 21, 2014 SUSAN ILLSTON United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2

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