Opinion
No. 2:11-cv-3334 MCE AC P
06-24-2013
SEAN D. CLARK, Petitioner, v. WILLIAM KNIPP, Respondent.
FINDINGS & RECOMMENDATIONS
Petitioner is a state prisoner who proceeds pro se and in forma pauperis on his petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. On May 7, 2013, the undersigned issued an order and findings and recommendations which, among other things, denied petitioner's pending motions for discovery. See ECF No. 36. After petitioner filed objections, the district court adopted the findings and recommendations, and entered judgment, on June 11, 2013. See ECF Nos. 38, 39, 40.
Petitioner has now filed a motion for relief under Federal Rule of Civil Procedure 60(b)(1), asking that the court either grant or deny his motions for discovery. See ECF No. 41. Petitioner has also filed a notice of appeal. See ECF No. 42.
Generally, once a petitioner files a notice of appeal of this court's judgment, jurisdiction over the action vests in the Court of Appeals. See Pope v. Savings Bank of Puget Sound, 850 F.2d 1345, 1346 (9th Cir. 1988) ("Filing of the....notice of appeal divested the district court of further jurisdiction over the case.") However, because the motion is timely filed, this court may entertain petitioner's pending 60(b)(1) motion, and deny it. See Fed. R. Civ. Proc. 62.1(a)(2).
The undersigned recommends that the court entertain petitioner's motion, and deny it. The motions which petitioner asks the court to address were denied by the undersigned on May 7, 2013. This interlocutory order merges with the final judgment and may be challenged in an appeal of the final judgment. Baldwin v. Redwood City, 540 F.2d 1360, 1364 (9th Cir. 1976). Petitioner's request is entirely without merit.
Accordingly, IT IS HEREBY RECOMMENDED that petitioner's "Motion for Rule 60(b)(1)" (ECF No. 41), filed June 19, 2013, be denied, pursuant to Federal Rule of Civil Procedure 62.1.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within twenty-eight (28) days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any reply to the objections shall be served and filed within twenty-eight (28) days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
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ALLISON CLAIRE
UNITED STATES MAGISTRATE JUDGE