Opinion
No. 01-CV-74112-DT
January 24, 2003
OPINION AND ORDER DENYING MOTION FOR RELIEF FROM JUDGMENT
Petitioner filed a pro se Petition for habeas corpus pursuant to 28 U.S.C. § 2254 in this Court on October 30, 2001. Petitioner raised several challenges to his armed robbery conviction in 1987. Respondent filed an Answer in Opposition to Petition for Relief of Habeas Corpus, arguing the Petition is time-barred under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). On August 16, 2002, this Court issued an Opinion, and a Judgment, dismissing the Petition. The Court held that the Petition was time barred because the Petition was filed after the one-year limitation period imposed by AEDPA, and Petitioner's state motion for post-conviction relief had not tolled the limitation period because it did not address any of the issues presented in his Petition before this Court. (8/16/2002 Opinion).
On September 9, 2002, Petitioner filed his notice of appeal, and a "Request for a Certificate of Appealability." On September 26, 2002, this Court granted Petitioner's request for a certificate of appealability. (9/26/2002 Opinion and Order).
On January 6, 2003, Petitioner filed a Motion for Relief from Judgment in this Court, pursuant to Federal Rule of Civil Procedure 60(b). This Motion seeks relief from the Judgment entered on August 16, 2002. Because Petitioner has filed his notice of appeal, this Court no longer has jurisdiction over the matter. See Pittock v. Otis Elevator Co., 8 F.3d 325, 327 (6th Cir. 1993) ("[a]s a general rule, a district court no longer has jurisdiction over an action as soon as a party files a notice of appeal. . ."). Although this Court does retain jurisdiction to decide a timely filed Rule 60(b) motion, in the case at bar the Motion was filed over three months after the notice of appeal. See Avery v. Nicol, 2000 U.S. App. LEXIS 4127, *4-5 (6th Cir. 2000) (holding district courts retain jurisdiction to resolve a Rule 60(b) motion filed no later than ten days after judgment because the motion tolls the time for appeal and renders ineffective the notice of appeal until the Rule 60(b) motion is resolved).
The court in Pittock did indicate there are exceptions to this "general rule." These exceptions are "when the appeal is untimely, presents issues that the appellate court had previously decided in the same case, or is from a non-final, non-appealable order[.]" Pittock, 8 F.3d at 327. None of these exceptions apply to the case at bar.
The current Motion having been filed over four months after entry of Judgment and over three months after Petitioner filed his notice of appeal, this Court does not have jurisdiction to decide Petitioner's Motion for Relief from Judgment. Accordingly,
IT IS ORDERED that Petitioner's Motion for Relief from Judgment be and is hereby DENIED.