(HC) Smith v. Clark ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 LAWRENCE CHRISTOPHER SMITH, No. 1:21-cv-01346-JLT-EPG (HC) 12 Petitioner, ORDER DISMISSING PETITIONER’S MOTION FOR RULE 59(e) RELIEF FOR 13 v. LACK OF JURISDICTION 14 KEN CLARK, (Doc. 36) 15 Respondent. 16 17 Lawrence Christopher Smith is a state prisoner who proceeded pro se with a petition for 18 writ of habeas corpus brought pursuant to 28 U.S.C. § 2254. Petitioner filed a federal habeas 19 petition, raising the following claims for relief: (1) unreasonable search and seizure; (2) false 20 evidence; (3) judicial bias; and (4) selective prosecution. (Doc 1.) On October 12, 2022, the 21 magistrate judge issued findings and recommendations recommending the petition be denied. 22 (Doc. 23.) On December 13, 2022, the Court adopted the findings and recommendations and 23 denied the petition. (Doc. 27.) the Court entered judgment that same day. (Doc. 28.) 24 On January 6, 2023, Petitioner filed a motion for relief from judgment pursuant to Federal 25 Rule of Civil Procedure 60(b)(3). (Doc. 29.) On March 23, 2023, the Court denied Petitioner’s 26 Rule 60(b)(3) motion. (Doc. 32.) On April 10, 2023, Petitioner filed a notice of appeal and the 27 appeal was processed to the Ninth Circuit. (Docs. 32, 33.) On April 17, 2023, Petitioner filed the 28 instant motion for Rule 59(e) relief. (Doc. 36.) 1 “Once an appeal is filed, the district court no longer has jurisdiction to consider motions to 2 | vacate judgment.” Davis v. Yageo Corp., 481 F.3d 661, 685 (9th Cir. 2007) (citing Gould v. Mut. 3 | Life Ins. Co. of N.Y., 790 F.2d 769, 772 (9th Cir. 1986)). Accord Scott v. Younger, 739 F.2d 1464, 4 | 1466 (9th Cir. 1984) (“In this circuit, the rule has generally been stated that the filing of a notice 5 | of appeal divests the district court of jurisdiction to dispose of the motion after an appeal has been 6 | taken, without a remand from this court.” (quotation marks omitted) (quoting Long v. Bureau of 7 | Economic Analysis, 646 F.2d 1310, 1318 (9th Cir. 1981))). “The proper procedure, once an 8 | appeal has been taken, is to ‘ask the district court whether it wishes to entertain the motion, or to 9 | grant it, and then move [the Ninth Circuit], if appropriate, for remand of the case.’” Gould, 790 10 | F.2d at 772 (quotation marks omitted) (quoting Scott, 739 F.2d at 1466). 11 The basis for Petitioner’s Rule 59(e) motion appears to be various actions by the 12 | California Department of Corrections and Rehabilitation that Petitioner alleges denied him access 13 | to the courts. (Doc. 36 at 2-4.) The Court notes that Petitioner’s list of allegedly obstructive 14 | conduct mostly consists of actions that pre-date this habeas proceeding and concern matters 15 | outside of this habeas proceeding. Petitioner also appears to allege that CDCR obstructed receipt 16 | by the Court of a reply in support of his Rule 60(b)(3) motion. It is highly doubtful that a reply 17 | would have changed the Court’s analysis in denying the Rule 60 motion. Therefore, the Court 18 || declines to entertain Petitioner’s post-appeal Rule 59(e) motion. Accordingly, the Court 19 | ORDERS that Petitioner’s Rule 59(e) motion (Doc. 36) is DISMISSED for lack of jurisdiction. 20 IT IS SO ORDERED. 22 | Dated: _May 26, 2023 Charis [Tourn TED STATES DISTRICT JUDGE 23 24 25 26 27 28