(HC) Palmer v. Atchley

Opinion

Marlon Palmer, No. 2:19-cv-01999-KJM-KJN Petitioner, ORDER AND ORDER TO SHOW B CAUSE TO COUNSEL Matthew Atchley, 1S Respondent. On October 2, 2019, petitioner Marlon Palmer, with the assistance of counsel, filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254. Pet., ECF No. 1. On January 13, 2023, after considering petitioner’s objections to the magistrate judge’s findings and recommendations, the court adopted the findings and recommendations and denied the habeas petition. See Prior Order, ECF No. 26. Petitioner filed a notice of appeal. Notice, ECF No. 28. Petitioner, acting pro se, has filed a document objecting to this court’s denial of his habeas petition, requesting an extension of time for responding to an unidentified order, and requesting appointment of counsel. See generally Mot., ECF No. 31. First, it appears petitioner is still represented by counsel. There has been no motion to withdraw and petitioner’s counsel “may not withdraw leaving the client in propria persona without leave of court upon noticed motion and notice to the client and all other parties who have appeared.” E.D. Cal. L.R. 182(d). Although the court may disregard petitioner’s pro se filing

because he is still represented by counsel, the court also finds it does not have jurisdiction over his request. “Once a notice of appeal is filed, the district court is divested of jurisdiction over the matters being appealed.” Nat. Res. Def. Council, Inc. v. Sw. Marine Inc., 242 F.3d 1163, 1166 (9th Cir. 2001). Although the court “retains jurisdiction during the pendency of an appeal to act to preserve the status quo,” id., the court does not have jurisdiction to “adjudicate anew the merits of the case after either party has invoked its right of appeal and jurisdiction has passed to an appellate court,” McClatchy Newspapers v. Cent. Valley Typographical Union No. 46, 686 F.2d 731, 734 (9th Cir. 1982). Petitioner appears to challenge this court’s order denying his habeas petition. See Mot. Because petitioner has filed a notice of appeal prior to filing the instant motion, this court lacks jurisdiction; the motion is denied. This order resolves ECF No. 31. Petitioner is cautioned all further pro se filings will be disregarded so long as he is represented by counsel. The court also orders counsel for petitioner, Joseph Lanting Ryan and Robert Joseph Beles to show cause within 21 days of the filing date of this order what the status of petitioner’s representation is. DATED: January 5, 2024.

CHIEF ED STATES DISTRICT JUDGE