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Gerardo Gonzalez v. Mike D. Mcdonald

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA


April 23, 2012

GERARDO GONZALEZ
v.
MIKE D. MCDONALD, WARDEN

The opinion of the court was delivered by: The Honorable George H. Wu, U.S. District Judge

CIVIL MINUTES - GENERAL

Present: The Honorable GEORGE H. WU, U.S. DISTRICT JUDGE

Javier Gonzalez N/A

Deputy Clerk Court Reporter / Recorder Attorney Present for Petitioner: Attorney Present for Respondent:

N/A N/A

Proceedings: (IN CHAMBERS) - PETITIONER'S RULE 60(B)(6) MOTION

(filed June 13, 2011)

Although Petitioner's current submission has been filed as a new habeas action, in substance it is a Rule 60(b)(6) motion relating to Petitioner's prior habeas action, case number CV 10-5282, and in fact it refers to and incorporates an attached motion for reconsideration. The Court entered Judgment dismissing that action on September 29, 2011 and, on the same day, denied a Certificate of Appealability. But Petitioner had filed a premature Notice of Appeal in this Court three weeks earlier, on September 8. That filing prompted the Ninth Circuit to open its case number 11-56714. The appellate court soon dismissed the appeal for lack of jurisdiction as premature. The dismissal itself did not occur until November 15, after this Court's Judgment.

Petitioner now explains that he realized his premature-appeal mistake just in time and thus mailed another Notice of Appeal on October 27. This Court received that second Notice and filed it on October 31. The new Notice prompted the Court of Appeals to open another case, number 11-56946, which remains pending.

Now before this Court is Petitioner's Rule 60(b) motion seeking "reconsideration, and that his appeal . . . be reinstated." The motion is DENIED, and the action is DISMISSED, for lack of jurisdiction. Petitioner already has at least one pending appeal. See generally Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58-59, 103 S.Ct. 400, 74 L.Ed.2d 225 (1982) (per curiam) ("The filing of a notice of appeal is an event of jurisdictional significance -- it confers jurisdiction on the court of appeals and divests the district court of its control over those aspects of the case involved in the appeal"). In Petitioner's second Ninth Circuit case, he has filed several motions similar in nature to this one, upon none of which the appellate court has yet ruled.

Initials of Preparer JG

20120423

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