Gonzalez v. Unknown Party

1 WO 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Gilberto Martin Gonzalez, No. CV-19-05188-PHX-DWL 10 Petitioner, ORDER v. Unknown Party, et al., 13 Respondents.

15 On November 1, 2019, Petitioner filed a second amended petition for a writ of habeas corpus under 28 U.S.C. § 2254. (Doc. 8.) On June 3, 2020, Magistrate Judge Burns issued a Report and Recommendation (“R&R”) concluding the second amended petition should be denied and dismissed with prejudice. (Doc. 14.) Judge Burns specified that (1) the “recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals,” (2) “[a]ny notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court’s judgment,” and (3) the parties had 14 days to file specific written objections with this Court. (Id. at 7.)

23 Nevertheless, Petitioner filed a notice of appeal to the Ninth Circuit, rather than filing objections to the R&R. (Doc. 15.) A notice of appeal typically divests the district court of jurisdiction to take any action except in aid of the appeal. See generally Ruby v. Sec’y of U. S. Navy, 365 F.2d 385 (9th Cir. 1966) (en banc). “This transfer of jurisdiction from the district court to the court of appeals is not effected, however, if a litigant files a notice of appeal from an unappealable order,” Estate of Conners by Meredith v. O’Connor, 1|| 6 F.3d 656, 658 (9th Cir. 1993)—or, in this case, from an R&R, which is not an order at all. Leon v. Danaher Corp., 2011 WL 13190190, *2 n.1 (D. Ariz. 2011), aff'd, 474 F. || App’x 591 (9th Cir. 2012) (appeal of R&R does not divest district court of jurisdiction).

Because the deficiency of the notice of appeal is clear to the Court, “it may disregard the || purported notice of appeal and proceed with the case, knowing that it has not been deprived 6|| of jurisdiction.” Ruby, 365 F.2d at 389.

7 The June 17, 2020 deadline for Petitioner to file objections to the R&R has not yet || elapsed, but as a practical matter, Petitioner likely will require an extension of time to draft 9|| and file objections after reviewing this Order. The Court will proceed with the case and || sua sponte extend the deadline for Petitioner to file objections to the R&R. 11 Petitioner is cautioned once again that failure to timely file objections to the Magistrate Judge’s R&R may result in the acceptance of the R&R without further review, || and such a failure may weigh in favor of a finding of waiver on appeal. Martinez v. YIst, 14], 951 F.2d 1153, 1156 (9th Cir. 1991).

15 Accordingly, 16 IT IS ORDERED that the deadline for Petitioner to file objections to the R&R || (which shall be filed in the action pending before this Court, the U.S. District Court) is extended to June 30, 2020.

19 Dated this 16th day of June, 2020.

21 Lm ee” 22 f t _o———— Dominic W. Lanza 23 United States District Judge -2-