Roberto H Hernandez v. Lara

Filing 7

ORDER Denying Motion to Vacate Pursuant to 28 U.S.C. § 2255. Because the Court lacks jurisdiction to consider it, the motion is denied without prejudice. Signed by Judge Larry Alan Burns on 1/23/13.(All non-registered users served via U.S. Mail Service)(kaj)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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UNITED STATES OF AMERICA,

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CASE NO. 13cv127-LAB and
12cr847-LAB-1
Plaintiff,

vs.

ORDER DENYING MOTION TO
VACATE PURSUANT TO 28
U.S.C. § 2255

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ROBERTO HERNANDEZ-HERNANDEZ,
Defendant.

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Defendant Roberto Hernandez-Hernandez pleaded guilty in this Court to being a

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previously deported alien found in the United States, in violation of 8 U.S.C. § 1326.

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Although he proceeded pro se in this Court, he was appointed counsel for purposes of

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appeal. His counsel filed an appeal, which is now pending in the Ninth Circuit.

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Hernandez then filed a petition, styled as a petition for writ of habeas corpus pursuant

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to 28 U.S.C. § 2241, in the Central District of California. The judge to whom it was assigned,

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Hon. George H. Wu, construed it as a motion pursuant to 28 U.S.C. § 2255 and transferred

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it here.

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Because Hernandez is represented by counsel on appeal, he should not have filed

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what amounts to a § 2255 motion on his own, but rather should have done so through

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counsel. But more importantly, the notice of appeal filed by his counsel deprives this Court

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of jurisdiction to consider the motion at all. See Griggs v. Provident Consumer Disc. Co., 459

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U.S. 56, 58 (1982) (per curiam) (“The filing of a notice of appeal is an event of jurisdictional

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13cv127 and 12CR847

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significance—it confers jurisdiction on the court of appeals and divests the district court of

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its control over those aspects of the case involved in the appeal.”); Edwards v. United States,

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2011 WL 3273153, at *3 (E.D.Cal., July 28, 2011) (noting that notice of appeal had deprived

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district court of jurisdiction to consider § 2255 motion).

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Because the Court lacks jurisdiction to consider it, the motion is DENIED WITHOUT
PREJUDICE.
IT IS SO ORDERED.
DATED: January 23, 2013

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HONORABLE LARRY ALAN BURNS
United States District Judge

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13cv127 and 12CR847