Opinion
1:07-cr-00156-LJO
04-16-2018
UNITED STATES OF AMERICA, Plaintiff, v. MARCUS MAJOR, Defendant.
ORDER DISMISSING DEFENDANT MARCUS MAJOR'S "RULE 60(b)(1) MOTION" FOR LACK OF JURISDICTION (ECF No. 549)
On February 20, 2018, Defendant/Petitioner Marcus Major filed a motion pursuant to Fed. R. Civ. P. 60(b)(6) requesting reconsideration of this Court's August 18, 2017 Order denying his second habeas corpus petition. This Court lacks jurisdiction to consider the merits of the motion. As a general rule, "[o]nce a notice of appeal is filed, the district court is divested of jurisdiction over the matters being appealed." Natural Res. Def. Council, Inc. v. Southwest Marine Inc., 242 F.3d 1163, 1166 (9th Cir. 2001). A notice of appeal does not divest the district court of jurisdiction if at the time the notice of appeal was filed there "was then a pending motion for reconsideration." United Nat. Ins. Co. v. R & D Latex Corp., 242 F.3d 1102, 1109 (9th Cir .2001) (citing Fed. R. App. P. 4(a)(4)(B)(i)). A motion for reconsideration under Fed. R. Civ. P. 60 is "pending" and thus, suspends the effect of a notice of appeal when the motion is filed "no later than 28 days after the judgment is entered." Fed. R. App. P. 4(a)(4)(A)(vi); see also Lal v. California, 610 F.3d 518, 523-24 (9th Cir .2010); Miller v. Marriott Int'l, Inc., 300 F.3d 1061, 1063-64 (9th Cir. 2002).
Here, the Court denied Defendant's habeas petition on August 21, 2017. ECF No. 536. Defendant, through counsel, filed a notice of appeal on August 31, 2017. ECF No. 539. That appeal is still pending. Defendant filed his Rule 60(b)(1) reconsideration motion on February 20, 2018. Therefore, his motion for reconsideration, filed long after the 28 day period expired, was not pending at the time the notice of appeal was field. Accordingly, the appeal divests this Court of jurisdiction over Defendant's motion. The motion is therefore DISMISSED for lack of jurisdiction. IT IS SO ORDERED.
Dated: April 16 , 2018
/s/ Lawrence J. O'Neill
UNITED STATES CHIEF DISTRICT JUDGE