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Johnson v. W.L. Montgomery

United States District Court, C.D. California, Western Division

December 15, 2014

WALTER JOHNSON, Petitioner,
v.
W.L. MONTGOMERY (Warden), Respondent.

OPINION AND ORDER Denying Petitioner's Rule 59(e) Motion to Alter or Amend Judgment; Denying a Certificate of Appealability.

VALERIE BAKER FAIRBANK, Senior District Judge.

This habeas corpus action was closed and on appeal, but California state prisoner Walter Johnson ("petitioner") filed a timely motion to alter or amend judgment pursuant to Federal Rule of Civil Procedure 59.[1] The Court determines that it has jurisdiction to decide this motion notwithstanding petitioner's earlier-filed notices of appeal to the United States Court of Appeals for the Ninth Circuit ("the Ninth Circuit"). The Court will deny petitioner's reconsideration motion for lack of merit and decline to issue a certificate of appealability.

PROCEDURAL HISTORY. Proceeding pro se, petitioner filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. section 2254 on September 27, 2013. See Case ManagementElectronic Case Filing System Document ("Doc") #1. The case was referred to the Honorable Stephen Hillman, United States Magistrate Judge, who issued orders on October 4, 2013 (Docs 5-7) denying petitioner's motion for a stay and abeyance, denying petitioner's motion for appointment of counsel, and directing the respondent warden to file an answer or other suitable response to the habeas petition. The respondent filed an "initial answer" on October 24, 2013 (Doc 8), and after extensions of time, respondent filed a Return and a supporting memorandum of points and authorities (Doc 20) and relevant documents (Doc 21) on March 21, 2014. With an extension, petitioner filed a traverse (Doc 26) on May 19, 2014.

On September 5, 2014, the Magistrate Judge issued a Report and Recommendation ("R&R") recommending that the habeas petition be denied. With an extension (Doc 31), petitioner timely objected to the R&R on October 20, 2014 (Doc 32). On October 27, 2014 the undersigned issued an Order overruling the objections, adopting the R&R, denying the habeas petition, and dismissing the action with prejudice (Doc 35); entered final judgment in favor of respondent (Doc 36); and issued an Order denying petitioner's application for a certificate of appealability but granting him in forma pauperis status on appeal (Doc 37).

Petitioner's First Notice of Appeal. On October 20, 2014, after the Magistrate Judge issued the R&R but before this Court issued its order adopting the R&R and entering judgment, petitioner filed a first notice of appeal to the Ninth Circuit (Doc 33). See also Doc 38 (Circuit Notification Re: Oct. 20, 2014 Notice of Appeal in No. 14-56712). On December 2, 2014, a panel of the Ninth Circuit (Judges Goodwin, Rawlinson, and Ikuta) issued an order dismissing this first appeal for lack of jurisdiction "because the order challenged in the appeal is not final or appealable." Doc #42 (citing Serine v. Peterson, 989 F.2d 371, 372-73 (9th Cir. 1993) (a magistrate judge's findings and recommendations are not appealable, and a premature appeal from an R&R is not cured by the district court's subsequent entry of final judgment)) (citing, inter alia, In re San Vicente Medical Partners, Ltd., 865 F.2d 1128 (9th Cir. 1989))).

Petitioner's Second Notice of Appeal. On November 10, 2014, two weeks after this Court entered final judgment, petitioner filed a second notice of appeal to the Ninth Circuit (Doc 39). See also Doc 41 (Circuit Notification Re: Nov. 10, 2014 Second Notice of Appeal, No. 14-56818). This second appeal remains pending before the Ninth Circuit, which as of today is considering whether or not to issue a certificate of appealability. See Doc 42 (Dec. 2, 2014 Circuit Notification Re: Oct. 20, 2014 First Notice of Appeal in No. 14-56712) ("Appellant's appeal from the district court's final judgment entered on October 27, 2014 is proceeding in this court as a request for a certificate of appealability in docket number 14-56818.").

On Monday, November 17, 2014, the Clerk's Office of this Court filed petitioner's "motion to alter or amend a judgment" (motion for reconsideration), which petitioner dated "XX-XX-XXXX." At the time petitioner filed his reconsideration motion, he already had two notices of appeal pending with the Ninth Circuit in this case. Four weeks have elapsed since petitioner filed his reconsideration motion, and respondent has not filed a response. Accordingly, the Court will proceed to rule on petitioner's motion without waiting further for a response from respondent.

THIS COURT HAS JURISDICTION TO ENTERTAIN PETITIONER'S MOTION.

The Supreme Court has stated that "[t]he 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." Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58-59, 103 S.Ct. 400 (1982) (per curiam); see also Marrese v. American Academy of Orthopaedic Surgeons, 470 U.S. 373, 379, 105 S.Ct. 1327, 1331 (1985) ("In general, filing of a notice of appeal confers jurisdiction on the court of appeals and divests the district court of control over those aspects of the case involved in the appeal.") (citing Griggs, 459 U.S. at 58); see, e.g., Hobson v. Safeway, Inc., 551 F.Appx. 331, 331 (9th Cir. 2013) (Goodwin, Wallace, Graber) (holding that district court properly determined that it lacked jurisdiction to consider plaintiff's motion for leave to amend complaint because plaintiff filed that motion after filing a notice of appeal); Bryant v. Crum & Forster Specialty Ins. Co., 502 F.Appx. 670, 671 (9th Cir. 2012) (C.J. Kozinski, Trott, Wardlaw) (the filing of a notice of appeal divested the district court of jurisdiction to entertain a later-filed motion to intervene).

Nonetheless, "in order to prevent unnecessary appellate review, " the Federal Rules of Appellate Procedure give "the district court... express authority to entertain a timely motion to alter or amend the judgment under [Federal Rule of Civil Procedure] 59, even after a notice of appeal ha[s] been filed." Griggs, 459 U.S. at 59, 103 S.Ct. at 402. The Supreme Court in Griggs was referring to Federal Rule of Appellate Procedure 4(a) ("Appeal as of Right - When Taken; Appeal in a Civil Case"). That Rule provides in pertinent part as follows:

(4) Effect of a Motion on a Notice of Appeal.
(A) If a party timely files in the district court any of the following motions under the Federal Rules of Civil Procedure, the time to file an appeal runs for all parties from the entry of the order disposing of the last such remaining motion:
* * *
(iv) to alter or amend the judgment ...

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