(HC) Palmer v. Atchley ( 2024 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 Marlon Palmer, No. 2:19-cv-01999-KJM-KJN 12 Petitioner, ORDER AND ORDER TO SHOW B CAUSE TO COUNSEL Matthew Atchley, 1S Respondent. 16 17 On October 2, 2019, petitioner Marlon Palmer, with the assistance of counsel, filed a 18 | petition for a writ of habeas corpus under 28 U.S.C. § 2254. Pet., ECF No. 1. On January 13, 19 | 2023, after considering petitioner’s objections to the magistrate judge’s findings and 20 | recommendations, the court adopted the findings and recommendations and denied the habeas 21 | petition. See Prior Order, ECF No. 26. Petitioner filed a notice of appeal. Notice, ECF No. 28. 22 Petitioner, acting pro se, has filed a document objecting to this court’s denial of his habeas 23 | petition, requesting an extension of time for responding to an unidentified order, and requesting 24 | appointment of counsel. See generally Mot., ECF No. 31. 25 First, it appears petitioner is still represented by counsel. There has been no motion to 26 | withdraw and petitioner’s counsel “may not withdraw leaving the client in propria persona 27 | without leave of court upon noticed motion and notice to the client and all other parties who have 28 | appeared.” E.D. Cal. L.R. 182(d). Although the court may disregard petitioner’s pro se filing 1 | because he is still represented by counsel, the court also finds it does not have jurisdiction over 2 | his request. 3 “Once a notice of appeal is filed, the district court is divested of jurisdiction over the 4 | matters being appealed.” Nat. Res. Def. Council, Inc. v. Sw. Marine Inc., 242 F.3d 1163, 1166 5 | (9th Cir. 2001). Although the court “retains jurisdiction during the pendency of an appeal to act 6 | to preserve the status quo,” id., the court does not have jurisdiction to “adjudicate anew the merits 7 | of the case after either party has invoked its right of appeal and jurisdiction has passed to an 8 | appellate court,” McClatchy Newspapers v. Cent. Valley Typographical Union No. 46, 9 | 686 F.2d 731, 734 (9th Cir. 1982). 10 Petitioner appears to challenge this court’s order denying his habeas petition. See Mot. 11 | Because petitioner has filed a notice of appeal prior to filing the instant motion, this court lacks 12 | jurisdiction; the motion is denied. 13 This order resolves ECF No. 31. Petitioner is cautioned all further pro se filings will be 14 | disregarded so long as he is represented by counsel. The court also orders counsel for petitioner, 15 | Joseph Lanting Ryan and Robert Joseph Beles to show cause within 21 days of the filing date of 16 | this order what the status of petitioner’s representation is. 17 IT IS SO ORDERED. 18 DATED: January 5, 2024. CHIEF ED STATES DISTRICT JUDGE 45