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Young v. McGrath

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


August 4, 2008

BANQUO D. YOUNG, PETITIONER,
v.
JOE MCGRATH, RESPONDENT.

The opinion of the court was delivered by: Morrison C. England, Jr. United States District Judge

ORDER

Petitioner, a state prisoner proceeding pro se, brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pending before the court is petitioner's request for relief from judgment (Doc. 61) filed June 30, 2008.

Findings and recommendations were filed on September 19, 2006, recommending the denial of petitioner's petition for writ of habeas corpus. An order adopting those findings and recommendations was filed on May 15, 2007 (Doc. 48) and judgment was entered the same day (Doc. 49). Plaintiff then filed a request for certificate of appealability on June 18, 2007 (Doc. 51), which was denied on August 1, 2007 (Doc. 54). Petitioner's appeal was then processed to the Ninth Circuit Court of Appeals on April 24, 2008, and has been assigned a USCA case number of 08-16021.

"In general, filing of a notice of appeal confers jurisdiction on the court of appeals and divests the district court of control over those aspects of the case involved in the appeal." Marrese v. Am. Acad. of Orthopedic Surgeons, 470 U.S. 373, 379 (1985) (citing Griggs v. Provident Consumer Disc. Co., 459 U.S. 56, 58 (1982)). Accordingly, this Court is without jurisdiction to entertain a motion for relief from judgment.

Further, the Court notes that even if it had jurisdiction, it would not grant plaintiff's request. Pursuant to Rule 60(c)(1) of the Federal Rules of Civil Procedure, any motion for relief from a final judgment pursuant to Rule 60(b) must be made within a reasonable time, and generally no more than a year after the entry of the judgment. In this case, judgment was entered on May 15, 2007 and plaintiff's request was not filed until June 30, 2008.*fn1 His request therefore is untimely and would be denied.

Accordingly, IT IS HEREBY ORDERED that petitioner's request for relief from judgment (Doc. 61) is denied.


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