Gadd v. United States ( 2010 )

FILED
NOT FOR PUBLICATION MAR 02 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
WILLIAM SANFORD GADD, No. 07-16968
Petitioner - Appellant, D.C. No. 06-cv-00651-RCC
v.
UNITED STATES OF AMERICA, MEMORANDUM *
Respondent - Appellee.
Appeal from the United States District Court
for the District of Arizona
Raner C. Collins, District Judge, Presiding
Submitted February 16, 2010 **
Before: FERNANDEZ, GOULD, and M. SMITH, Circuit Judges.
Federal prisoner William Sanford Gadd appeals pro se from the district
court’s denial of the motion he filed pursuant to Federal Rule of Civil Procedure
60(b). We have jurisdiction pursuant to 28 U.S.C. § 1291, and we dismiss.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
JC/Research
Gadd contends the district court erred by denying his motion based on
procedural grounds. “[W]here the underlying judgment has been appealed, denial
of a motion for relief from that judgment is a nonappealable order.” Gould v.
Mutual Life Ins. Co. of N.Y., 790 F.2d 769, 772 (9th Cir. 1986). The proper
procedure to seek Rule 60(b) relief during the pendency of an appeal is to ask the
district court whether it wishes to entertain the motion, or to grant it, and then
move this court, if appropriate, for remand of the case. Scott v. Younger, 739 F.2d
1464, 1466 (9th Cir. 1984). “If that route is not taken, an appeal of the denial of
the [Rule 60(b) motion] is subject to dismissal.” Gould, 790 F.2d at 772.
In this case, the district court dismissed Gadd’s habeas corpus petition.
Gadd then filed a notice of appeal. While his appeal was pending, he filed a Rule
60(b) motion in the district court. However, Gadd failed to follow the proper
procedure in seeking to have the district court rule on his Rule 60(b) motion.
Accordingly, we dismiss Gadd’s appeal. See Scott, 739 F.2d at 1466.
Finally, we deny Gadd’s request to expand the certificate of appealability to
include his claim that the district court in West Virginia did not have jurisdiction to
indict him. See Hiivala v. Wood, 195 F.3d 1098, 1103-05 (9th Cir. 1999)
(per curiam).
DISMISSED.
JC/Research 2 07-16968