Perea v. Imperial County

Filing 52

ORDER denying 48 Motion to Reconsider and/or (COA) Certificate of Appeal. Signed by Magistrate Judge Ruben B. Brooks on 10/4/2012. (USCA Case Number 12-56578. Order electronically transmitted to US Court of Appeals. All non-registered users served via U.S. Mail Service.) (akr)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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JAIME TAPIA PEREA,

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Plaintiff,

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v.

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RAY LOERA, Sheriff,

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Defendants.

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Civil No. 10CV1565 RBB
ORDER DENYING MOTION TO
RECONSIDER AND/OR (COA)
CERTIFICATE OF APPEAL [ECF NO.
48]

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Petitioner Jaime Perea, proceeding pro se, filed a Petition

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for Writ of Habeas Corpus under 28 U.S.C. § 2254 on July 23, 2010

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[ECF No. 1].

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was subsequently filed nunc pro tunc to December 7, 2010 [ECF No.

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9].

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Second Amended Petition, which the Court denied [ECF Nos. 12, 21].

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An Answer was filed on June 27, 2011, and Perea filed his Response

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to Answer on August 11, 2011 [ECF Nos. 23, 24].

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Petitioner then filed a series of motions.

A Second Amended Petition for Writ of Habeas Corpus

On February 4, 2011, Respondent filed a Motion to Dismiss

He filed a

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"Motion in General;" followed by a document with the title "Motion

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of Defense;" and he submitted another document that was

filed

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10cv1565 WQH(RBB)

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nunc pro tunc to February 16, 2012, and was captioned "Motion to

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Inform" [ECF Nos. 26, 29, 32].

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On May 17, 2012, this Court issued an Order Denying (1)

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Petitioner's Second Amended Petition for Writ of Habeas Corpus

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[ECF No. 9], (2) Petitioner's Motion in General [ECF No. 26], (3)

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Petitioner's Motion of Defense [ECF No. 29], (4) Petitioner's

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Motion to Inform (ECF No. 32], and Declining to Issue Certificate

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of Appealability.

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40.)

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41].

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(Order Den. Pet'r's Second Am. Pet., ECF No.

A corresponding judgment was entered the same day [ECF No.

Perea next filed a Motion for Extension of Time to seek

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reconsideration [ECF No. 46].

The Court granted the request and

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directed Petitioner to file any motion to reconsider by July 23,

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2012.

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deadline passed.

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document entitled, Motion to Reconsider and/or (COA) Certificate

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of Appeal [ECF No. 48].

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document as a Notice of Appeal together with a Motion for

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Certificate of Appealability [ECF Nos. 48-50].

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Perea's Motion supports this conclusion.

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things, Perea states, "The pendency of an appeal does not effect

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[sic] the District Court[']s power to grant (Rule, 60, relief)."

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(Mot. Reconsider and/or (COA) Certificate of Appeal 3, ECF No.

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48.)

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F.3d 182, 183 (2d Cir. 2004).

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construe the filing of a notice of appeal as a request for a

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[certificate of appeal] 'on all issues raised in the appeal.'"

(Order Granting Pet'r's Mot. Extension 1, ECF No. 47.)

The

Nevertheless, on August 27, 2012, Perea filed a

The Clerk of the Court construed this

Language in

There, among other

In his Motion, id., he also cites Green v. Mazzucca, 377
Green held that a court "may

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Green, 377 F.3d at 183 (quoting Cotto v. Herbert, 331 F.3d 217,

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236 (2d Cir. 2003); Fed. R. App. P. 22(b)(2)).

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The United States Court of Appeals for the Ninth Circuit has

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assigned docket number 12-56578 to Perea's appeal [ECF No. 51].

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"The general rule is that a timely notice of appeal will divest a

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district court of jurisdiction over the action, including

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divesting a district court of the power to grant a Rule 60(b)

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motion . . . ."

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Practice § 60.67[1], at 60-229 (3d. ed. 2012) (footnote omitted)

12 James Wm. Moore et al., Moore's Federal

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(citation omitted); see Lewis v. Alexander, 987 F.2d 392, 394 (6th

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Cir. 1993) ("[T]he district court loses jurisdiction over an

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action once a party files a notice of appeal, and jurisdiction

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transfers to the appellate court.").

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the Federal Rules of Civil Procedure states that "[i]f a timely

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motion is made for relief that the court lacks authority to grant

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because of an appeal that has been docketed and is pending, the

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court may:

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motion . . . ."

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Similarly, Rule 62.1(a) of

(1) defer considering the motion; [or] (2) deny the
Fed. R. Civ. P. 62.1(a).

Even if Perea's filing is treated as a combined notice of

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appeal and motion for reconsideration, it is a deficient motion.

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Local Rule 7.1(i) provides:

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Whenever any motion or any application or petition
for any order or other relief has been made to any judge
and has been refused in whole or in part, or has been
granted conditionally or on terms, and a subsequent
motion or application or petition is made for the same
relief in whole or in part upon the same or any alleged
different state of facts, it will be the continuing duty
of each party and attorney seeking such relief to
present to the judge to whom any subsequent application
is made an affidavit of a party or witness or certified
statement of an attorney setting forth the material
facts and circumstances surrounding each prior
application, including inter alia: (1) when and what

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judge the application was made, (2) what ruling or
decision or order was made thereon, and (3) what new or
different facts and circumstances are claimed to exist
which did not exist, or were not shown, upon such prior
application.

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S.D. Cal. Civ. R. 7.1(i)(1).

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considered a motion for reconsideration, he has not complied with

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Local Rule 7.1(i).

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To the extent Perea's filing is

Because an appeal is pending, this Court lacks jurisdiction

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to rule on Perea's Motion.

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complied with local rules and shown a basis for granting a motion

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for reconsideration.

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In any event, Petitioner has not

For all these reasons, the Motion is DENIED

[ECF No. 49].

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DATED

October 4, 2012

__________________________
Ruben B. Brooks
United States Magistrate Judge

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cc:
All Parties of Record

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I:\Chambers Brooks\CASES\HABEAS\PEREA1565\OrderDenyingMotToReconsider.wpd

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10cv1565 WQH(RBB)