Shaw v. Diaz

Filing 32

ORDER by Judge Claudia Wilken DENYING PETITIONERS ( 26 , 27 , 31 ) MOTIONS TO PROCEED IFP ON APPEAL, TO APPOINT COUNSEL ON APPEAL AND FOR RELIEF FROM JUDGMENT. (Attachments: # 1 Certificate/Proof of Service) (ndr, COURT STAFF) (Filed on 2/12/2014)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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JOHN SHAW aka JOHN HSIA,

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Petitioner,
v.
TIM PEREZ, Acting Warden,

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Respondent.

No. C 13-1739 CW (PR)
ORDER DENYING PETITIONER’S
MOTIONS TO PROCEED IFP ON
APPEAL, TO APPOINT COUNSEL ON
APPEAL AND FOR RELIEF FROM
JUDGMENT
Doc. Nos. 26, 27 and 31

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United States District Court
For the Northern District of California

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On January 16, 2014, this Court issued an Order Granting
Respondent’s Motion to Dismiss this petition based on
untimeliness.
Respondent.
appeal.

On the same day, judgment was entered in favor of

On February 3, 2014, Petitioner filed a notice of

On February 7, 2014, the Ninth Circuit filed a notice

that it had received Petitioner’s notice of appeal and assigned it
case number 14-15231.

Doc. no. 29.

Also, on February 3, 2014,

Petitioner filed motions for leave to appeal in forma pauperis
(IFP) and for appointment of counsel on appeal.

On February 10,

2014, Petitioner filed a motion for relief from the judgment filed
on January 16, 2014.
Under Rule 24(a)(1) of the Federal Rules of Appellate
Procedure, Petitioner’s request to proceed IFP on appeal is
DENIED.

Although he states that he is unable to pay the filing

fee because of his poverty, he does not attach an affidavit that
“shows in detail prescribed by Form 4 of the Appendix of Forms the
party’s inability to pay or to give security for fees and costs.”

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Fed. R. App. P. 24(a)(1)(A).

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fee when his case was before the district court, see doc. no. 6,

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he has not previously been granted IFP status and, thus, Federal

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Rule of Appellate Procedure 24(a)(3) does not apply.

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Because Petitioner paid the filing

The Sixth Amendment's right to counsel does not apply in

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habeas corpus actions.

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(9th Cir. 1986).

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that in habeas cases, whenever "the court determines that the

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interests of justice so require, representation may be provided

Knaubert v. Goldsmith, 791 F.2d 722, 728

However, 18 U.S.C. § 3006A(a)(2)(B) provides

United States District Court
For the Northern District of California

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for any financially eligible person . . . ."

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are not particularly complex.

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require appointment of counsel.

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counsel is DENIED.

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Petitioner's claims

The interests of justice do not
The motion for appointment of

Plaintiff’s motion for relief from judgment is DENIED.

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Because the motion was filed after the filing of a notice of

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appeal, the Court lacks jurisdiction to consider the motion, see

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Natural Res. Def. Council, Inc. v. Southwest Marine Inc., 242 F.3d

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1163, 1166 (9th Cir. 2001) (once notice of appeal is filed,

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district court loses jurisdiction), and the Court is not disposed

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to entertain the motion, so the Court of Appeals need not remand

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for ruling, see Williams v. Woodford, 384 F.3d 567, 586 (9th Cir.

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2002).

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Based on the foregoing, the Court orders as follows:

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1. Plaintiff’s motion to proceed IFP on appeal is denied.

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Doc. no. 26.
2. Plaintiff’s motion for appointment of counsel on appeal is
denied.

Doc. no. 27.

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3. Plaintiff’s motion for relief from judgment is denied.
Doc. no. 31.
4. The Clerk of the Court shall mail a copy of this Order to
the Ninth Circuit Court of Appeals.
IT IS SO ORDERED.

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Dated:

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2/12/2014

CLAUDIA WILKEN
United States District Judge

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United States District Court
For the Northern District of California

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cc: NC

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