Medina v. Thaler

Filing 45

ORDER denying 34 Motion for Continuance; denying 37 Motion for Reconsideration; re: 38 Motion for Leave to File; denying 39 Motion for Leave to File; re: 40 Motion for Leave to File; denying 41 Motion for Leave to File; denying 42 Motion for Leave to File; denying 44 Motion. Pending are Petitioners Motion for Leave to File an Amended Complaint (DE and Motion for Leave to Furnish Additional Complaint which the Court construes as Notices of Appeal to the United States Court of Appeals for the Fifth Circuit. (D.E. 38 and D.E. 40). The Clerk of Court is instructed to re-file these documents accordingly. (Signed by Judge Nelva Gonzales Ramos) Parties notified.(mserpa, 2)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
PEPORRO PAPITO MEDINA,

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§ CIVIL ACTION NO. 2:12-CV-251
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Petitioner,
VS.
RICK THALER,
Respondent.

ORDER
Pending are Petitioner’s Motion for Leave to File an Amended Complaint and
Motion for Leave to Furnish Additional Complaint which the Court construes as Notices
of Appeal to the United States Court of Appeals for the Fifth Circuit. (D.E. 38 and D.E.
40). The Clerk of Court is instructed to re-file these documents accordingly.
Also

pending

are

Petitioner’s

Motion

for

Continuance,

Motion

for

Reconsideration, Motion for Leave to Add Amended Claims, Motion for Leave to
Furnish Motions, Motion for Leave to Furnish Writ of Mandamus, and Motion for
Discussion. (D.E. 34, D.E. 37, D.E. 39, D.E. 41, D.E. 42 and D.E. 44). Petitioner also
filed two briefs. (D.E. 36 and D.E. 43). For the reasons stated below, Petitioner’s
motions are DENIED.
Petitioner is a state prisoner currently incarcerated at the Coffield Unit in
Tennessee Colony, Texas.1

Proceeding pro se, he filed this habeas corpus petition

pursuant to 28 U.S.C. § 2254, challenging his 2002 robbery conviction. Petitioner filed
1

From review of the Texas Department of Criminal Justice, it appears Petitioner may currently
be incarcerated at the Estelle Unit in Walker County, Texas.
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his first federal habeas petition on September 27, 2007, which was dismissed as timebarred on April 29, 2008. Medina v. Quarterman, No. C-07-394 (S.D. Tex. Apr. 29,
2008). On July 23, 2012, Petitioner filed the instant case. His petition was dismissed on
May 7, 2013, as successive pursuant to The Antiterrorism and Effective Death Penalty
Act (“AEDPA”) and final judgment was entered. (D.E. 28 and D.E. 29).
Over a year later, Petitioner filed a Motion to Dismiss Order Adopting
Memorandum and Recommendation (D.E. 30) and Motion for Extension of Time. (D.E.
31). The Court, having entered a final judgment more than a year earlier, denied both
motions, advising Petitioner that the only avenue available for relief was a Motion for
Reconsideration pursuant to Fed. R. Civ. P. 60. (D.E. 33).
Petitioner’s pending motions are an attempt to rehash the issues presented in his
request for habeas relief. Petitioner has again not supplied any sufficient reason for his
delay in seeking relief or any briefing to show he is entitled to any relief under the
parameters of Rule 60. Further, Petitioner has filed notices of appeal. (D.E. 38 and D.E.
40). Once a party files a notice of appeal, a district court loses all jurisdiction and is
without power to grant a Rule 60(b) motion of the kind filed by the petitioner regarding
the merits of his case. See Rutherford v. Harris County, Tex., 197 F.3d 173, 190 (5th Cir.
1999) (explaining that, “once an appeal is taken, the district court is divested of
jurisdiction except to take action in the aid of the appeal until the case is remanded to it
by the appellate court or to correct clerical errors under Rule 60(a)”) (quoting Travelers
Ins. Co. v. Liljberg Enters., Inc., 38 F.3d 1404, 1407 n. 3 (5th Cir. 1994)).

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Therefore, the pending motions are DENIED. (D.E. 34, D.E. 37, D.E. 39, D.E.
41, D.E. 42 and D.E. 44).
ORDERED this 27th day of January, 2015.

___________________________________
NELVA GONZALES RAMOS
UNITED STATES DISTRICT JUDGE

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