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Patrick Joseph Mccabe v. United States of America

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION


January 7, 2011

PATRICK JOSEPH MCCABE,
PETITIONER.
v.
UNITED STATES OF AMERICA,
RESPONDENT.

The opinion of the court was delivered by: Lucy H. Koh United States District Judge

United States District Court For the Northern District of California

ORDER DENYING EX PARTE MOTION AND DISMISSING PETITION WITH LEAVE TO AMEND

On January 3, 2011, Petitioner, via counsel, submitted an "Ex Parte Motion to Take Judicial Notice and for Immediate Ruling on Petition for Writ of Habeas Corpus."*fn1 The ex parte motion 18 requests this Court to: 1) review the decision of another district court denying bail in Petitioner's 19 underlying extradition proceeding; and 2) deny the petition for habeas corpus in this action in order 20 to "facilitate judicial review" in the court of appeals. Petitioner's underlying extradition case is 21 assigned to the Honorable Richard Seeborg, and has been referred to Magistrate Judge Nandor J. RS. An extradition hearing is scheduled for January 31, 2011 before Judge Vadas. On December 28, 2010, in the underlying extradition case, Petitioner filed an appeal to the Ninth Circuit 25 regarding Judge Vadas' decision to deny bail.

grant the extraordinary remedy of habeas relief, while an appeal on exactly the same issue is 3 pending at the federal court of appeals. The general rule is just the opposite: "the filing of a notice 4 of appeal divests a district court of jurisdiction over those aspects of the case involved in the 5 appeal." See Stein v. Wood, 127 F.3d 1187, 1189 (9th Cir. 1997). Petitioner does cite to one case, 6 Paretti v. United States, 122 F.3d 758 (9th Cir. 1997), for the supposed proposition that "[t]his 7 indirect method of review is traditionally used because of legal questions of whether an order 8 denying bail in an extradition proceeding can be directly appealed to the Court of Appeals." See 9 Petitioner has cited no authority granting this Court jurisdiction to review, and potentially Petitioner's Ex Parte Motion at 2 [dkt. #3]. Paretti, however, is procedurally distinct because it did 10 not involve simultaneous review of a habeas petition while an appeal on the same issue was F.3d at 760. Moreover, Circuit precedent does not support Petitioner's argument. See United 14 States v. Kirby (In re Kirby), 106 F.3d 855, 860 (9th Cir. 1997) (holding that district judges' bail 15 decisions in extradition cases are final, appealable orders). Although Kirby involved the appeal of 16 a district judge's decision denying bail, the Ninth Circuit, in dicta, did recognize its jurisdiction to 17 review a decision to grant or deny bail "by a magistrate or district judge to a potential extraditee."

See id. at 861. Petitioner has provided no other authority to support his argument that the "indirect 19 method," i.e., filing a petition for a writ of habeas corpus in the hopes it will be denied and then 20 appealable, is "traditionally used" in extradition bail proceedings. Petitioner's own direct appeal 21 on the denial of bail suggests otherwise.

pending. In fact, the Ninth Circuit in Paretti actually reviewed on direct appeal a magistrate judge's decision (affirmed by the district judge) denying bail in an extradition proceeding. See 122 13

Accordingly, Petitioner's ex parte motion is DENIED, and the Petition for a Writ of Habeas Corpus is DISMISSED WITH LEAVE TO AMEND. Any amended petition must sufficiently 24 respond to the deficiencies identified above.

IT IS SO ORDERED.


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