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Martinez v. Frauenheim

United States District Court, E.D. California

March 29, 2017

DEREK MARTINEZ, Petitioner,
v.
SCOTT FRAUENHEIM, Warden, Pleasant Valley State Prison, Respondent.

          ORDER [RE: MOTION AT DOCKET NO. 80]

          JAMES K. SINGLETON, JR. Senior United States District Judge.

         This 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).

         Martinez 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.

         I. LEGAL STANDARDS

         It is 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).

         The procedure for doing so is set forth in Rule 62.1(a), which provides that:

         If a 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.

         If the 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.

         II. DISCUSSION

         1. Substantial Issue

         Under Rule 60(b), a party may seek relief from judgment and to re-open his case in limited circumstances. Gonzalez v. ...


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