Opinion
Case No. 14 C 2691
02-25-2015
UNITED STATES OF AMERICA ex rel. BRYAN GILZENE, Petitioner, v. RANDY PFISTER, Warden, Respondent.
USCA Case No. 14-3536 MEMORANDUM ORDER
On December 23, 2014 this Court issued its brief memorandum order ("Order") that addressed two then-pending motions filed by 28 U.S.C. § 2254 ("Section 2254") petitioner Bryan Gilzene ("Gilzene"). In part Order at 2-3 said this as to Gilzene's "Pro Se Petitioner's Motion for Relief from Judgment" (Dkt. 33):
As for Gilzene's second motion (Docket No. 33), this Court finds it puzzling. It was filed on November 17 of this year, the same day on which Gilzene filed his notice of appeal. As this Court understands it, the filing of the appeal ousted this Court of jurisdiction to entertain Gilzene's substantive motion, and that calls for a dismissal of that motion for lack of jurisdiction. This Court so orders.
Now this Court has received the Judge's Copy of a new filing by Gilzene captioned "Pro Se Petitioner's Motion for Judicial Notice" (Dkt. 37), received in the District Court Clerk's Office on February 10, 2015. What the Order stated as to Gilzene's Dkt. 33 motion appears to apply with equal force as to this newer filing -- that is, this Court believes that it lacks jurisdiction to entertain the motion because Gilzene's still-pending appeal has previously ousted this Court of jurisdiction. Accordingly the current motion is denied for lack of jurisdiction to entertain it (so that such denial is without prejudice).
/s/_________
Milton I. Shadur
Senior United States District Judge
Date: February 25, 2015