-AJB Ayala v. Wong, et al

Filing 477

ORDER on Ayala's 476 Notice Re: Removal of Claim 29. Signed by Judge Barry Ted Moskowitz on 11/7/2013.(rlu)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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RONALDO MEDRANO AYALA,

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vs.

CASE NO. 01cv0741 BTM (MDD)

Petitioner,

DEATH PENALTY CASE
ORDER ON AYALA’S NOTICE
RE: REMOVAL OF CLAIM 29

KEVIN CHAPPELL, Warden of
California State Prison at San
Quentin,

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Respondent.

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On November 4, 2013, Petitioner filed a Notice Re: the Inadvertent Removal of

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Claim 29. In the Notice, Petitioner explains that a miscommunication between

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Petitioner and counsel resulted in the inadvertent removal of Claim 29 from the federal

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Petition and states that he only intended to remove Claim 28. The docket reflects that

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counsel orally requested the removal of both Claims 28 and 29 at a April 27, 2006

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hearing and later repeated that same request in writing. (See Doc. No. 205.) In an

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order filed on June 9, 2006, the Court granted the request to withdraw both Claims 28

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and 29. (Doc. No. 206.)

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In any event, the Court issued a Final Order denying the Petition on March 28,

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2013. (Doc. No. 465.) On April 23, 2013, Petitioner filed a notice of appeal. (Doc.
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01cv0741

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No. 469.) As such, the Court has no jurisdiction to proceed at this time. See Natural

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Resources Defense Counsel, Inc. v. Southwest Marine, Inc., 242 F.3d 1163, 1166 (9th

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Cir. 2001) (“Once a notice of appeal is filed, the district court is divested of jurisdiction

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over matters being appealed.”)

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IT IS SO ORDERED.

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DATED: November 7, 2013
BARRY TED MOSKOWITZ
Chief Judge
United States District Court

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01cv0741