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Chanh Kouiyoth v. Matthew C. Kramer

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


January 26, 2011

CHANH KOUIYOTH, PETITIONER,
v.
MATTHEW C. KRAMER, RESPONDENT.

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

ORDER

Petitioner is a state prisoner proceeding pro se with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter is before the court on petitioner's June 4, 2010 motion for relief from judgment.

Petitioner's application was denied by this court on September 30, 2009, and judgment was entered on the same day.*fn1 On October 8, 2009, petitioner filed a motion for reconsideration, which construed as motion pursuant to Fed. R. Civ. P. 60(b) and denied by order filed October 29, 2009. Petitioner timely filed a notice of appeal from the order denying his motion for reconsideration.

His appeal is pending in the United States Court of Appeals for the Ninth Circuit.

"Once a notice of appeal is filed, jurisdiction is vested in the Court of Appeals, and the trial court thereafter has no power to modify its judgment in the case or proceed further except by leave of the Court of Appeals." Visioneering Constr. & Dev. Co. v. United States Fidelity & Guar., 661 F.2d 119, 124 n. 6 (9th Cir.1981). Moreover, this court would not grant the instant motion. Cf. Scott v. Younger, 739 F.2d 1464, 1466 (9th Cir. 1984) (proper procedure to seek Rule 60(b) relief during the pendency of an appeal is to "ask the district court whether it wishes to entertain the motion, or to grant it, and then move this court, if appropriate, for remand of the case.")

In accordance with the above, IT IS HEREBY ORDERED that:

1. Petitioner's June 4, 2010 motion for relief from judgment is denied.

2. The Clerk of the Court is directed to send a copy of this order to the United States Court of Appeals for the Ninth Circuit.


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