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Ontiveros v. Campbell

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


March 22, 2010

EDWARD ONTIVEROS, PETITIONER,
v.
R. CAMPBELL, ET AL., RESPONDENTS.

The opinion of the court was delivered by: J. Clifford Wallace United States Circuit Judge

ORDER

Petitioner Ontiveros filed a petition for writ of habeas corpus pursuant 28 U.S.C. section 2254. Ontiveros's petition was denied October 15, 2009. Ontiveros filed a notice of appeal and request for certificate of appealability on October 21, 2009. Ontiveros's request for a certificate of appealability was denied November 30, 2009. Thereafter, on December 8, 2009, Ontiveros's appeal was processed by the Court of Appeals for the Ninth Circuit.

On December 14, 2009, Ontiveros filed with the district court a document titled "Judicial Notice of Docket at 3 Application of 'In Forma Pauperis.'" In this document, Ontiveros moves "this court to take 'judicial notice' of its own docket at 3 for petitioner's in forma pauperis status." Ontiveros's request appears to relate to a bill he received for filing fees due to the Court of Appeals, dated December 8, 2009.

In this action, the undersigned acts as a district judge for the Eastern District of California by designation. Ontiveros's notice of appeal has been processed by the Court of Appeals for the Ninth Circuit, and this court is thereby divested of jurisdiction over Ontiveros's request regarding his in forma pauperis status. "As a general rule, the filing of a notice of appeal divests a district court of jurisdiction over those aspects of the case involved in the appeal." Stein v. Wood, 27 F.3d 1187, 1189 (9th Cir. 1997). Ontiveros must file his request for relief including any request for in forma pauperis status with the Court of Appeals. Ontiveros's request for relief pertains to his appeal and the filing fees due to the Court of Appeals for his appeal and must be directed accordingly.

20100322

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