Opinion
ORDER ON DEFENDANT'S 28 U.S.C. § 2255 MOTION TO VACATE, SET ASIDE OR CORRECT SENTENCE (Doc. 98)
LAWRENCE J. O'NEILL, District Judge.
INTRODUCTION
Defendant David J. Edwards ("Mr. Edwards") is a federal prisoner and proceeds pro se to seek to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255 ("§ 2255"). Having considered defendant's § 2255 motion on the record, this Court DENIES the motion.
BACKGROUND
Charges And Plea Agreement
A February 9, 2006 indictment charged Mr. Edwards with endeavors to impede the administration of the Internal Revenue Laws (26 U.S.C. §7212(a)), three counts of tax evasion (26 U.S.C. §7201) and two counts of presenting fictitious instrument purported to be actual security of the United States (18 U.S.C. §514). On March 18, 2008, Mr. Edwards, through his attorney, filed motions to suppress evidence. The motions were denied on the record April 21, 2008.
On January 11, 2010, Mr. Edwards pleaded guilty to count three of the indictment charging him with Tax Evasion. The plea was a formal, plea agreement pursuant to Fed.R.Crim. P. 11 filed on January 11, 2010. When Mr. Edwards entered is plea, he preserved his right to appeal from the order denying the motions to suppress, under Fed.R.Crim.P. 11. (Doc. 71 p.3.) On April 26, 2010, Mr. Edwards was sentenced to 21 months, and the remaining counts were dismissed. Mr. Edward filed a Notice of Appeal on April 26, 2010. (Doc. 78.) The Notice of Appeal challenges "the final Judgment of Conviction and sentence imposed upon him" and also challenges "the issues presented in defendant's motion or motions to suppress evidence."
The Ninth Circuit has issued several orders in Mr. Edwards' appeal. Some of the orders relate to Mr. Edwards' motions for bail pending appeal. The Court also issued orders establishing a briefing schedule for Mr. Edwards' appeal and noted in an order filed on March 4, 2011 that the "Briefing is complete." (Doc. 97.) Therefore, pending before the Ninth Circuit are the completely briefed issues of defendant's conviction, sentence and the denial of the motions to suppress.
"The filing of a notice of appeal is an event of jurisdictional significance - it confers jurisdiction on the court of appeals and divests the district court of its control over those aspects of the case involved in the appeal." United States v. Powell, 24 F.3d 28, 31 (9th Cir. 1994). A "district court is divested of jurisdiction once a notice of appeal has been filed from the original sentence." United States v. Ortega-Lopez, 988 F.2d 70, 72 (9th Cir. 1993). See Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58, 103 S.Ct. 400, 74 L.Ed.2d 225 (1982) (per curiam)("[A] federal district court and a federal court of appeals should not attempt to assert jurisdiction over a case simultaneously.")
Defendant's Notice of Appeal divests this Court of jurisdiction. Defendant filed his April 29, 2011 § 2255 motion which, at a minimum, touches on matters subject to his appeal. As such, this Court cannot address matters raised in defendant's § 2255 motion during the pendency of his appeal. The Ninth Circuit Court of Appeals' rulings may render moot issues raised in defendant's papers.
CONCLUSION AND ORDER
For the reasons discussed above, this Court DENIES Mr. Edwards § 2255 relief.
IT IS SO ORDERED.