(HC) Calderon v. Covello

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 JUAN CARLOS CALDERON, 11 Case No. 22-cv-03881 BLF (PR) Petitioner, 12 ORDER DENYING MOTION FOR 13 LEAVE TO APPEAL IN FORMA v. PAUPERIS; DENYING MOTION 14 FOR APPOINTMENT OF

15 COUNSEL ON APPEAL; DENYING PATRICK COVELLO, Warden, OTHER MOTIONS 16 Respondent. (Docket Nos. 36, 37, 38, 39) 17

18 19 This is a habeas corpus case filed by a state prisoner pursuant to 28 U.S.C. § 2254. 20 On August 22, 2023, the Court granted Respondent’s motion to dismiss the petition for 21 failure to state a cognizable claim and for lack of federal habeas jurisdiction. Dkt. No. 30. 22 The Court also denied a certificate of appealability and entered judgment the same day. Id.; Dkt. No. 31. On September 25, 2023, Petitioner filed a notice of appeal. Dkt. No. 33. 23 On October 5, 2023, Petitioner filed several motions: a motion to amend the notice 24 of appeal, Dkt. No. 36, a motion for leave to appeal in forma pauperis and appointment of 25 counsel, Dkt. No. 37, a motion “for general equitable relief,” Dkt. No. 38, and a motion to 26 stay pending decision for equitable relief, Dkt. No. 39. 27 Once the notice of appeal is filed, the district court loses jurisdiction over the 1 || matters being appealed. Natural Res. Def. Council, Inc. v. Southwest Marine Inc., 242 2 || F.3d 1163, 1166 (9th Cir. 2001); United Nat'l Ins. Co. v. R&D Latex Corp., 242 F.3d 1102, 3 1109 (9th Cir. 2001). Accordingly, Petitioner’s motion to amend the notice of appeal, 4 || motion for “general equitable relief,” and motion for stay are DENIED for lack of 5 || jurisdiction. Dkt. Nos. 36, 38, 39. Petitioner should file these motions in the Court of 6 Appeals. 7 The certificate of appealability was denied because “no reasonable jurist would find g it debatable whether the district court was correct in its procedural ruling.” Slack v. 9 McDaniel, 529 U.S. 473, 484 (2000). For the same reason, Petitioner’s appeal is not taken

10 in “good faith,” and consequently leave to proceed in forma pauperis on appeal must be

4 DENIED. See 28 U.S.C. § 1915(a)(3). Petitioner may renew the motion in the Court of Appeals. See Fed. R. App. P. 24(a). Petitioner’s motion for appointment of counsel on appeal is also DENIED without prejudice to filing the motion before the Ninth Circuit. pet. No. 37. This order terminates Docket Nos. 36, 37, 38, and 39. IT IS SO ORDERED. ‘6 Dated: October 13, 2023 fliinfrecian 17 BETH LABSON FREEMAN United States District Judge Z 18 19 20 21 22 23 24 25 Order Denying IFP on Appeal; Denying Appt of Counsel; Other Mots. P:\PRO-SE\BLF\HC.22\03881Calderon_deny.ifp(appeal) 26 27 28