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Nancy Abston v. Warden Kent Eichenberger

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


July 26, 2011

NANCY ABSTON,
PETITIONER,
v.
WARDEN KENT EICHENBERGER,
RESPONDENT.

The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge

ORDER DISREGARDING MOTION FOR THE APPOINTMENT OF COUNSEL (DOC. 39)

ORDER DISREGARDING AS MOOT PETITIONER'S MOTION TO PROCEED IN FORMA PAUPERIS (DOC. 40)

ORDER DISREGARDING PETITIONER'S MOTION FOR RECONSIDERATION OF ORDER DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY (DOC. 41)

Petitioner is a state prisoner who proceed pro se and in forma pauperis with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pursuant to 28 U.S.C. § 636(c)(1), the parties have consented to the jurisdiction of the United States Magistrate Judge. On July 28, 2009, the petition was denied, and judgment was entered for Respondent. On August 21, 2009, Petitioner filed a notice of appeal. On May 18, 2011, the United States Court of Appeals for the Ninth Circuit denied a request for a certificate of appealability and denied all pending motions as moot; hence, the appeal is still pending. (Doc. 38.)

Pending before this Court are several motions filed after the notice of appeal was filed.

I. Motion for Appointment of Counsel

On June 22, 2011, Petitioner filed in this Court a request for appointment of counsel (doc. 39).

The motion was addressed to the appellate court. Further, the motion was filed after the notice of appeal was filed. The filing of a timely notice of appeal transfers jurisdiction to the appellate court over the appealable orders and judgments that are encompassed by the notice, and it removes jurisdiction from the district court. Trulis v. Barton, 107 F.3d 685, 694 (9th Cir. 1995).

Because this Court lacks jurisdiction over the request for counsel, the motion will be disregarded.

II. Motion to Proceed in Forma Pauperis On June 22, 2011, Petitioner filed a motion to proceed in forma pauperis (doc. 40).

On October 8, 2008, this Court granted Petitioner's previously filed motion to proceed in forma pauperis. In the absence of a contrary statutory provision, a party who was permitted to proceed in forma pauperis in the district court may proceed in forma pauperis on appeal without further authorization unless the district court certifies that the appeal is not taken in good faith. Fed. R. App. P. 24(a)(3).

Thus, Petitioner's present motion is moot and will be disregarded.

III. Motion to Reconsider Certificate of Appealability Although it was the Court of Appeals that recently denied Petitioner's request for a certificate of appealability (doc. 38), Petitioner filed in this Court on June 22, 2011, a motion addressed to this Court seeking reconsideration of the order declining a certificate of appealability (doc. 41). This Court previously declined to issue a certificate of appealability in the order denying the petition that was filed on July 28, 2009.

Because the appeal is pending before the Court of Appeals, this Court lacks jurisdiction to consider Petitioner's motion for reconsideration.

Accordingly, the motion will be disregarded.

IV. Disposition

Accordingly, it is ORDERED that Petitioner's motion for the appointment of counsel, motion to proceed in forma pauperis, and motion for reconsideration of the order declining a certificate of appealability are DISREGARDED as moot.

IT IS SO ORDERED.

20110726

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