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Johnnie Hairston v. G. Swarthout

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


July 12, 2011

JOHNNIE HAIRSTON, PETITIONER,
v.
G. SWARTHOUT, RESPONDENT.

ORDER

On May 9, 2011, the undersigned dismissed petitioner's application for a writ of habeas corpus. Judgment was entered accordingly. On May 24, 2011, petitioner filed a notice of appeal and a motion for a "stay," asking that he be allowed time to exhaust new claims in state court.

The filing of a valid notice of appeal divests the district court of jurisdiction to alter, amend or modify the order challenged in the appeal. See Pope v. Bank of Puget Sound, 850 F.2d 1345, 1347 (9th Cir. 1988). An exception to this rule allows a district court to stay its order while an appeal is pending. See Fed. R. App. P. 8(a). But petitioner does not seek a stay pending appeal; rather, he apparently wants this court to vacate its judgment so that he can exhaust additional claims in state court. The court therefore lacks jurisdiction to grant petitioner's request and the Clerk is directed to terminate docket entry no. 10.

The court will issue no response to future filings by petitioner in this action not authorized by the Federal Rules of Civil Procedure or Federal Rules of Appellate Procedure.

So ordered.

20110712

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