United States District Court, E.D. California
ORDER [RE: MOTION AT DOCKET NO. 80]
K. SINGLETON, JR. Senior United States District Judge.
Court denied Derek Martinez, a state prisoner proceeding
pro se, habeas relief and a certificate of
appealability on May 12, 2015. Docket Nos. 70, 71. Martinez
timely filed a notice of appeal, Docket No. 72, and the Ninth
Circuit Court of Appeals granted a certificate of
appealability with respect to: 1) whether the prosecutor
committed misconduct manipulating the witness; and 2) whether
Martinez can demonstrate, in light of new evidence, that he
is actually innocent of the offense, Docket No. 12 (Ninth
Cir. Case No. 15-16082). On appeal, Martinez moved in
September 2016 to supplement the record with DNA testing and
reporting that resulted from state court litigation conducted
from prior to the filing of his federal Petition through
2016. Docket No. 30 (Ninth Cir. Case No. 15-16082). The Ninth
Circuit denied the request without prejudice to counsel
seeking a written indication from this Court that it would be
inclined to consider the new evidence in the first instance
in a Rule 60(b) motion, if the Court of Appeals issued a
limited remand. Docket No. 33 (Ninth Cir. Case No. 15-16082).
then requested that the Ninth Circuit hold the appeal in
abeyance to allow him to seek an indicative ruling in this
Court and remand the matter for consideration of the Rule
60(b) motion. Docket No. 51 (Ninth Cir. Case No. 15-16082).
The Ninth Circuit denied Martinez's request for a limited
remand without prejudice to filing a renewed motion in the
event this Court issued an indicative ruling in his favor,
and stayed the appellate proceedings pending this Court's
decision on the indicative ruling motion. Docket No. 53
(Ninth Cir. Case No. 12-16082). Martinez now moves in this
Court pursuant to Federal Rule of Civil Procedure 62.1(a) for
an indicative ruling stating that the Court would: 1) grant
Martinez's motion to vacate the May 12, 2015, Judgment if
the Court of Appeals remands for that purpose; or 2) that
Martinez's motion to vacate raises a substantial issue.
Docket No. 80. Respondent opposes the motion as untimely and
procedurally improper. Docket No. 83.
well-settled that the “filing of a notice of appeal
divests the district court of jurisdiction.” Gould
v. Mutual Life Ins. Co., 790 F.2d 769, 772 (9th Cir.
1986). When a Rule 60(b) motion is filed in district court
after the filing of a notice of appeal, the district court
lacks jurisdiction to entertain the motion. Katzir Floor
& Home Designs, Inc. v. M-MLS.com, 394 F.3d 1143,
1148 (9th Cir. 2004). “To seek Rule 60(b) relief during
the pendency of an appeal, the proper procedure is to ask the
district court whether it wishes to entertain the motion, or
to grant it, and then move [the court of appeals], if
appropriate, for remand of the case.” Williams v.
Woodford, 384 F.3d 567, 586 (9th Cir. 2004).
procedure for doing so is set forth in Rule 62.1(a), which
timely motion is made for relief that the court lacks
authority to grant because of an appeal that has been
docketed and is pending, the court may:
(1) defer considering the motion;
(2) deny the motion; or
(3) state either that it would grant the motion if the court
of appeals remands for that purpose or that the motion raises
a substantial issue.
district court issues an indicative ruling that it would
either grant the motion or that there is a substantial issue,
the appellate court then decides whether to remand the case
for a ruling by the district court. Knight v.
Trimble, No. C 10-00276, 2013 WL 6140743, at *2 (N.D.
Cal. Nov. 21, 2013). A statement that the motion raises a
substantial issue does not bind the district court to a
particular ruling after remand. Id.
Rule 60(b), a party may seek relief from judgment and to
re-open his case in limited circumstances. Gonzalez v.