IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
May 6, 2009
STEPHEN R. FEGAN, PETITIONER,
CORCORAN STATE PRISON, RESPONDENT.
The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge
ORDER DENYING WITHOUT PREJUDICE PETITIONER'S MOTION FOR EXPANSION OF WARDEN, RECORD
ORDER DENYING WITHOUT PREJUDICE PETITIONER'S MOTION FOR EVIDENTIARY HEARING
ORDER DENYING WITHOUT PREJUDICE PETITIONER'S MOTIONS TO AMEND PETITION
(Docs. 18, 19 & 25)
Petitioner is a state prisoner proceeding pro se in an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.
On September 15, 2008, Petitioner filed his petition. (Doc. 1). Also on September 15, 2008, Petitioner filed a motion to proceed in forma pauperis. (Doc. 2). On September 22, 2008, the Court granted Petitioner's motion. (Doc. 4). On September 26, 2008, Petitioner consented to the jurisdiction of the U.S. Magistrate Judge. (Doc. 5). On September 29, 2008, Petitioner filed several motions, including a motion for discovery and a motion for appointment of counsel. (Docs. 7 & 8).
On October 6, 2008, the Magistrate Judge denied Petitioner's motion for appointment of counsel. (Doc. 9). On October 6, 2008, the same date as the Court denied the motion for appointment of counsel, Petitioner filed a document entitled "Notice of Appeal." (Doc. 11). In that document, which itself is not dated but has a proof of service dated October 2, 2008, Petitioner indicates that he will be filing "a writ of habeas corpus on September 18, 2008 pursuants [sic] to 28 U.S.C. 2254 and Federal Rules of Appellate Procedure." (Id.). Also on October 6, 2008, Petitioner filed a "Motion for Certificate of Appealability." (Doc. 11). This document is dated September 30, 2008 and has a proof of service dated September 30, 2008. (Id.).
Neither the Notice of Appeal nor the Motion for Certificate of Appealability indicated what order of the Court Petitioner was appealing, and therefore, the Court, being at a loss to comprehend the nature of the appeal, denied the request for a certificate of appealability. (Doc. 12). The case was subsequently processed to the United States Court of Appeals for the Ninth Circuit and Petitioner's appeal has been pending since approximately October 10, 2008.
In the interim, Petitioner has continued to file motions with this Court, including three separate motions, filed respectively on November 10, 2008 (Doc. 18), November 19, 2009 (Doc. 19), and more recently on April 29, 2009, to amend the petition to include a claim of cumulative error. (Doc. 25). Petitioner has also filed a motion to expand the record on October 14, 2008 (Doc. 15), a motion for an evidentiary hearing on October 14, 2008 (Doc. 16), and yet another motion for appointment of counsel on April 13, 2009 (Doc. 23), the latter being denied by the Court on April 22, 2009. (Doc. 24).
Generally, the filing of a notice of appeal divests the district court of jurisdiction with respect to all matters involved in the appeal. Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58 (1982)(per curiam); Bermudez v. Duenas, 936 F.2d 1064, 1068 (9th Cir. 1991); Gould v. Mutual Life Insurance Company of New York, 790 F.2d 769, 772 (9th Cir. 1986); Scott v. Younger, 739 F.2d 1464, 1466 (9th Cir. 1984); Davis v. United States, 667 F.2d 822, 824 (9th Cir. 1982).
Here, Petitioner filed his notice of appeal on October 6, 2008. (Doc. 10). The case was transferred to the Ninth Circuit on October 10, 2008. (Doc. 13). The case has been pending before the Ninth Circuit since that date. Accordingly, the Court was divested of jurisdiction on October 6, 2008 and continues to lack jurisdiction over any of the above-mentioned motions filed by Petitioner since that date. Therefore, the Court will deny all of those motions without prejudice. Petitioner is free to re-file those motions and to renew his requests to amend, to expand the record, and for an evidentiary hearing, if and when the Ninth Circuit returns this matter to this Court for further proceedings.
Accordingly, IT IS HEREBY ORDERED as follows:
1. Petitioner's motion to expand the record (Doc. 15), is DENIED without prejudice;
2. Petitioner's motion for an evidentiary hearing (Doc. 16), is DENIED without prejudice; and
3. Petitioner's motions to amend the petition to include a claim of cumulative error (Docs. 18, 19, & 25), are DENIED without prejudice.
IT IS SO ORDERED.
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