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Fegan v. Corcoran State Prison

May 6, 2009

STEPHEN R. FEGAN, PETITIONER,
v.
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

(Doc. 15)

ORDER DENYING WITHOUT PREJUDICE PETITIONER'S MOTION FOR EVIDENTIARY HEARING

(Doc. 16)

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.

PROCEDURAL HISTORY

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).

DISCUSSION

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. ...


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