Calderon v. Covello

Full title: JUAN CARLOS CALDERON, Petitioner, v. PATRICK COVELLO, Warden, Respondent.

Court: United States District Court, Northern District of California

Date published: Oct 13, 2023

22-cv-03881 BLF (PR) (N.D. Cal. Oct. 13, 2023)

Opinion

22-cv-03881 BLF (PR)

10-13-2023

JUAN CARLOS CALDERON, Petitioner, v. PATRICK COVELLO, Warden, Respondent.

BETH LABSON FREEMAN, United States District Judge.

ORDER DENYING MOTION FOR LEAVE TO APPEAL IN FORMA PAUPERIS; DENYING MOTION FOR APPOINTMENT OF COUNSEL ON APPEAL; DENYING OTHER MOTIONS (DOCKET NOS. 36, 37, 38, 39)

BETH LABSON FREEMAN, United States District Judge.

This is a habeas corpus case filed by a state prisoner pursuant to 28 U.S.C. § 2254. On August 22, 2023, the Court granted Respondent's motion to dismiss the petition for failure to state a cognizable claim and for lack of federal habeas jurisdiction. Dkt. No. 30. The Court also denied a certificate of appealability and entered judgment the same day. Id.; Dkt. No. 31. On September 25, 2023, Petitioner filed a notice of appeal. Dkt. No. 33.

On October 5, 2023, Petitioner filed several motions: a motion to amend the notice of appeal, Dkt. No. 36, a motion for leave to appeal in forma pauperis and appointment of counsel, Dkt. No. 37, a motion “for general equitable relief,” Dkt. No. 38, and a motion to stay pending decision for equitable relief, Dkt. No. 39.

Once the notice of appeal is filed, the district court loses jurisdiction over the matters being appealed. Natural Res. Def. Council, Inc. v. Southwest Marine Inc., 242 F.3d 1163, 1166 (9th Cir. 2001); United Nat'l Ins. Co. v. R&D Latex Corp., 242 F.3d 1102, 1109 (9th Cir. 2001). Accordingly, Petitioner's motion to amend the notice of appeal, motion for “general equitable relief,” and motion for stay are DENIED for lack of jurisdiction. Dkt. Nos. 36, 38, 39. Petitioner should file these motions in the Court of Appeals.

The certificate of appealability was denied because “no reasonable jurist would find it debatable whether the district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). For the same reason, Petitioner's appeal is not taken in “good faith,” and consequently leave to proceed in forma pauperis on appeal must be DENIED. See 28 U.S.C. § 1915(a)(3). Petitioner may renew the motion in the Court of Appeals. See Fed. R. App. P. 24(a). Petitioner's motion for appointment of counsel on appeal is also DENIED without prejudice to filing the motion before the Ninth Circuit. Dkt. No. 37.

This order terminates Docket Nos. 36, 37, 38, and 39.

IT IS SO ORDERED.