Samarripa v. Ormond

Filing 34

MEMORANDUM ORDER: 1. Samarripa's Motion to Alter or Amend the Judgment pursuant to Rules 59(e) and 60(b) of the Federal Rules of Civil Procedure [Record No. 32 ] is DENIED. 2. The Clerk of the Court shall forward a copy of this Order to the Clerk of the United States Court of Appeals for the Sixth Circuit. Signed by Judge Danny C. Reeves on 12/28/2017.(KJA)cc: COR, Clerk 6CCA, mailed paper copy of Order to pro se filer

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION
(at London)
DAVID SAMARRIPA,
Petitioner,
v.
J. RAY ORMOND, Warden,
Respondent.

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Civil Action No. 6:17-86-DCR

MEMORANDUM ORDER

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This matter is pending for consideration of Petitioner David Samarripa’s Motion to
Alter or Amend the Judgment pursuant to Rules 59(e) and 60(b) of the Federal Rules of Civil
Procedure. [Record No. 32] Samarripa presents further arguments in his motion in support of
his habeas petition and asks the Court to reconsider its previous order denying his petition.
First, Samarripa’s motion is untimely. Although the Court’s order and judgment
denying Samarripa’s petition was filed August 24, 2017 [Record No. 17], Samarripa did not
file his motion to reconsider until December 27, 2017. A motion to alter or amend a judgment
filed pursuant to Rule 59(e) must be filed no later than 28 days after entry of the judgment.
Fed. R. Civ. P. 59(e). Similarly, a motion under Rule 60(b) must be made within a “reasonable
time.” Fed. R. Civ. P. 60(c)(1). In these circumstances, the Court finds that Samarripa’s
motion was not filed within a “reasonable” time, particularly where, as here, he simply seeks
to present further legal arguments that could have been asserted in his initial petition.
More critically, on September 6, 2017, Samarripa filed a notice of appeal of the Court’s
Judgment with the United States Court of Appeals for the Sixth Circuit. [Record No. 19] The
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filing of the notice of appeal divests this Court of its control over those aspects of the case
involved in the appeal, including further consideration of Samarripa’s arguments that he is
entitled to relief pursuant to 28 U.S.C. § 2241. See Griggs v. Provident Consumer Discount
Co., 459 U.S. 56, 58 (1982) (“The filing of a notice of appeal is an event of jurisdictional
significance—it confers jurisdiction on the court of appeals and divests the district court of its
control over those aspects of the case involved in the appeal.”). Thus, this Court does not have
jurisdiction to consider Samarripa’s present motion. Accordingly, it is hereby
ORDERED as follows:
1.

Samarripa’s Motion to Alter or Amend the Judgment pursuant to Rules 59(e)

and 60(b) of the Federal Rules of Civil Procedure [Record No. 32] is DENIED.
2.

The Clerk of the Court shall forward a copy of this Order to the Clerk of the

United States Court of Appeals for the Sixth Circuit.
This 28th day of December, 2017.

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