Martinez v. Howard

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

9 Daniel Martinez, No. CV-21-00230-TUC-RM 10 Petitioner, ORDER v. Catricia Howard, 13 Respondents.

15 Pending before the Court is Petitioner Daniel Martinez’s (“Petitioner”) Motion for Reconsideration. (Doc. 31.) On November 9, 2022, this Court issued an Order adopting the Report and Recommendation (“R&R”) which denied Petitioner’s Petition for Writ of Habeas Corpus and Motion for Preliminary Injunction while overruling Petitioner’s objection. (Doc. 26.)1 Specifically, the Court found that Petitioner’s sentence of imprisonment was correctly calculated under 18 U.S.C. § 3584(a). (Id. at 5.)

21 On December 22, 2022, Petitioner appealed this Court’s November 9, 2022 Order to the Ninth Circuit Court of Appeals. (Doc. 28.) Petitioner’s Notice of Appeal was received by the Ninth Circuit the following day. (Doc. 30.)

24 On December 29, 2022, a week after filing his Notice of Appeal, Petitioner filed a Motion for Reconsideration in this Court requesting that the Court reconsider its November 9, 2022 Order. (Doc. 31.) Petitioner argues the Court erred in holding that Reynolds v. Thomas, 603 F. 3d 1144 (9th Cir. 2010) was no longer controlling law, and that this case’s 1 The Background from the Court’s November 9, 2022 Order is incorporated by reference into this Order. || interpretation of 18 U.S.C. § 3584(a) justified Petitioner’s immediate release from the || Bureau of Prisons. (/d.)

3 The filing of a notice of appeal “confers jurisdiction on the court of appeals and divests the district court of its control over those aspects of the case involved tn the appeal.”

5|| Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58 (1982). The district court is || therefore without jurisdiction to respond to a motion for reconsideration if filed after the 7\| filing of a notice of appeal. United States v. Vroman, 997 F.2d 627, 627 (9th Cir. 1993).

8 || Because Petitioner filed his Motion for Reconsideration a week after filing his Notice of 9|| Appeal, this Court may not properly entertain Petitioner’s Motion. Accordingly, || Petitioner’s Motion for Reconsideration must be dismissed for lack of jurisdiction.

11 IT IS ORDERED 12 Petitioner’s Motion for Reconsideration (Doc. 31) is dismissed.

13 Dated this 17" day of January, 2023.

16 yp 7 17 “1 fA Bea □ Honorable Rostviary Mafquez 18 United States District Jlidge _2-