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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JAIME TAPIA PEREA, 12 Plaintiff, 13 v. 14 RAY LOERA, Sheriff, 15 Defendants. ) ) ) ) ) ) ) ) ) ) Civil No. 10CV1565 RBB ORDER DENYING MOTION TO RECONSIDER AND/OR (COA) CERTIFICATE OF APPEAL [ECF NO. 48] 16 Petitioner Jaime Perea, proceeding pro se, filed a Petition 17 18 for Writ of Habeas Corpus under 28 U.S.C. § 2254 on July 23, 2010 19 [ECF No. 1]. 20 was subsequently filed nunc pro tunc to December 7, 2010 [ECF No. 21 9]. 22 Second Amended Petition, which the Court denied [ECF Nos. 12, 21]. 23 An Answer was filed on June 27, 2011, and Perea filed his Response 24 to Answer on August 11, 2011 [ECF Nos. 23, 24]. 25 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 26 "Motion in General;" followed by a document with the title "Motion 27 of Defense;" and he submitted another document that was filed 28 1 10cv1565 WQH(RBB) 1 nunc pro tunc to February 16, 2012, and was captioned "Motion to 2 Inform" [ECF Nos. 26, 29, 32]. 3 On May 17, 2012, this Court issued an Order Denying (1) 4 Petitioner's Second Amended Petition for Writ of Habeas Corpus 5 [ECF No. 9], (2) Petitioner's Motion in General [ECF No. 26], (3) 6 Petitioner's Motion of Defense [ECF No. 29], (4) Petitioner's 7 Motion to Inform (ECF No. 32], and Declining to Issue Certificate 8 of Appealability. 9 40.) 10 41]. 11 (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 12 reconsideration [ECF No. 46]. The Court granted the request and 13 directed Petitioner to file any motion to reconsider by July 23, 14 2012. 15 deadline passed. 16 document entitled, Motion to Reconsider and/or (COA) Certificate 17 of Appeal [ECF No. 48]. 18 document as a Notice of Appeal together with a Motion for 19 Certificate of Appealability [ECF Nos. 48-50]. 20 Perea's Motion supports this conclusion. 21 things, Perea states, "The pendency of an appeal does not effect 22 [sic] the District Court[']s power to grant (Rule, 60, relief)." 23 (Mot. Reconsider and/or (COA) Certificate of Appeal 3, ECF No. 24 48.) 25 F.3d 182, 183 (2d Cir. 2004). 26 construe the filing of a notice of appeal as a request for a 27 [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 28 2 10cv1565 WQH(RBB) 1 Green, 377 F.3d at 183 (quoting Cotto v. Herbert, 331 F.3d 217, 2 236 (2d Cir. 2003); Fed. R. App. P. 22(b)(2)). 3 The United States Court of Appeals for the Ninth Circuit has 4 assigned docket number 12-56578 to Perea's appeal [ECF No. 51]. 5 "The general rule is that a timely notice of appeal will divest a 6 district court of jurisdiction over the action, including 7 divesting a district court of the power to grant a Rule 60(b) 8 motion . . . ." 9 Practice § 60.67[1], at 60-229 (3d. ed. 2012) (footnote omitted) 12 James Wm. Moore et al., Moore's Federal 10 (citation omitted); see Lewis v. Alexander, 987 F.2d 392, 394 (6th 11 Cir. 1993) ("[T]he district court loses jurisdiction over an 12 action once a party files a notice of appeal, and jurisdiction 13 transfers to the appellate court."). 14 the Federal Rules of Civil Procedure states that "[i]f a timely 15 motion is made for relief that the court lacks authority to grant 16 because of an appeal that has been docketed and is pending, the 17 court may: 18 motion . . . ." 19 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 20 appeal and motion for reconsideration, it is a deficient motion. 21 Local Rule 7.1(i) provides: 22 23 24 25 26 27 28 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 3 10cv1565 WQH(RBB) 1 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. 2 3 4 S.D. Cal. Civ. R. 7.1(i)(1). 5 considered a motion for reconsideration, he has not complied with 6 Local Rule 7.1(i). 7 To the extent Perea's filing is Because an appeal is pending, this Court lacks jurisdiction 8 to rule on Perea's Motion. 9 complied with local rules and shown a basis for granting a motion 10 for reconsideration. 11 In any event, Petitioner has not For all these reasons, the Motion is DENIED [ECF No. 49]. 12 DATED October 4, 2012 __________________________ Ruben B. Brooks United States Magistrate Judge 13 14 15 cc: All Parties of Record 16 17 18 19 20 21 22 23 24 25 26 27 28 I:\Chambers Brooks\CASES\HABEAS\PEREA1565\OrderDenyingMotToReconsider.wpd 4 10cv1565 WQH(RBB)

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