Free Motion for Miscellaneous Relief - District Court of Arizona - Arizona

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Tonya J. McMath State Bar #012281 111 West Monroe Suite 1650 Phoenix, Arizona 85003 (602) 254-5544 Attorney for Petitioner

UNITED STATES DISTRICT COURT 7 DISTRICT OF ARIZONA 8 9 10 11 12 13 14 15 Petitioner, Gregory Allen Waterman, through undersigned counsel, respectfully moves this 16 Court formally to re-enter its Order originally filed July 6, 2005 [doc. 93] granting Petitioner's 17 Motion for Relief from Order and Judgment filed June 16, 2005 [doc. 87] and vacating the Court's 18 earlier Order [doc. 85] and Judgment [doc. 86] dismissing Petitioner's Petition for Writ of Habeas 19 Corpus entered May 25, 2005, for the reason that jurisdiction again is vested in this Court 20 following a limited remand by the Ninth Circuit Court of Appeals. 21 This Motion is supported by the attached Memorandum of Points and Authorities. 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES On May 25, 2005, this Court entered its Order from Chambers [Re: Report and By /s/ Tonya J. McMath Tonya J. McMath Attorney for Petitioner Respectfully submitted this 11th day of May, 2006. ) ) Petitioner, ) ) vs. ) ) DORA B. SCHRIRO, et al., ) ) Respondents. ) ) ) ____________________________________) GREGORY ALLEN WATERMAN, No. CIV- 02-2368-PHX-JWS (DKD) AMENDED MOTION TO RE-ENTER RULE 60(b) RELIEF

(First Request)

Recommendation] [doc. 85] and Judgment in a Civil Case [doc. 86] dismissing Petitioner's

Case 2:02-cv-02368-JWS

Document 106

Filed 05/11/2006

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Petition for Writ of Habeas Corpus ("Habeas Petition") [doc. 1]. On June 16, 2005, Petitioner filed his Motion for Relief from Order and Judgment Pursuant to Rule 60(b) ("Rule 60(b) Motion") [doc. 87]. On June 20, 2005, Petitioner filed a Motion to Entertain Motion for Relief from Order and Judgment Pursuant to Rule 60(b) ("Motion to Entertain Rule 60(b) Motion") [doc. 88]. On June 21, 2005, Petitioner filed his Motion for Certificate of Appealability ("COA") [doc. 90]. On June 22, 2005, this Court entered its Order from Chambers granting in part, and denying in part, the COA [doc. 92].1 Petitioner filed his Notice of Appeal on June 24, 2005 [doc. 91]. On July 6, 2005, this Court's Order from Chambers [RE: Motions at dockets 87 and 88] was filed [doc. 93]. In its Order, this Court granted both Petitioner's Rule 60(b) Motion and Motion to Entertain Rule 60(b) Motion, as well as vacated its earlier Order and Judgment dismissing Petitioner's Habeas Petition. (Id.) Thereafter, this Court's Order directed "[t]he parties [to] take such steps as are necessary to advise the Court of Appeals of this order" (Id. at 3), which Petitioner did by virtue of a Motion for Limited Remand to District Court and Stay of Briefing Schedule filed with the Court of Appeals on or about July 22, 2005 ("Motion for Limited Remand'). In that motion, Petitioner articulated his "understanding that once he filed `his notice of appeal of the district court's judgment denying his habeas corpus petition, the district court lost jurisdiction over the petition', such that any subsequently filed ruling on Petitioner's Rule 60(b) Motion would be `void for lack of jurisdiction.' Williams [v. Woodford], 384 F.3d [567], 586 [(9th Cir. 2004)]." (Id. at 4, fn.2). Based thereon, Petitioner moved the appellate court "for a limited remand of the pending appeal directing the district court to re-enter its ruling vacating its earlier Order and Judgment in the record upon remand when jurisdiction again is vested in the district court." (Id. at 3-4).

Although the Court's Order was not file-stamped until June 24, 2005, a courtesy copy was faxed from chambers to undersigned counsel on June 22, 2005 "[d]ue to the impending deadline for filing a notice of appeal." [doc. 92]

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In a memorandum subsequently filed with the Ninth Circuit Court of Appeals, Petitioner elaborated: It is Appellant's understanding that this Court retains jurisdiction of the instant appeal at present because the district court lacked jurisdiction to enter its Order of July 6, 2005 ostensibly vacating its earlier Judgment of May 25, 2005 ­ Appellant's Notice of Appeal having been filed in the interim on June 24, 2005, thereby depriving the district court of jurisdiction. See, e.g., Williams v. Woodford, 384 F.3d 567, 586 (9th Cir. 2004) (and cases cited therein). Alternatively, in the event that this Court determines that the district court, in fact, retained jurisdiction following the filing of Appellant's Notice of Appeal to enter a valid Order on July 6, 2005 vacating its earlier Judgment of May 25, 2005, then Appellant would move for the voluntary dismissal of the instant appeal. (Appellant's Memorandum Responding to Order Filed August 17, 2005, p. 1).

9 On November 29, 2005, the Ninth Circuit Court of Appeals entered its Order granting 10 Petitioner's Motion for Limited Remand, finding that: 11 12 13 14 (Id. at 1). The Court of Appeals ruled that, "[a]ccordingly, appellant's unopposed July 22, 2005 15 motion for remand is granted, and this case is remanded to district court so it may rule upon 16 appellant's motion for relief of judgment." (Id. at 1-2). 17 Subsequently, on May 4, 2006, this Court entered an order rejecting the Magistrate Judge's 18 Report and Recommendation, finding Petitioner's Habeas Petition to have been timely filed, and 19 returning the matter to the docket of the Magistrate Judge for further proceedings [doc. 99]. 20 However, the Court's earlier Order [doc. 85] and Judgment [doc. 86] entered May 25, 2005 21 dismissing Petitioner's Habeas Petition technically remain on the record. Petitioner respectfully 22 requests that the Court formally re-enter its Order filed July 6, 2005 [doc. 93] granting Petitioner's 23 24 25 26 27 28 Appellant's notice of appeal, entered in the district court on June 22 (sic), 2005, divested the district court of jurisdiction to consider appellant's motion for relief of judgment, which was filed in the district court on June 16, 2005. See Williams v. Woodford, 384 F.3d 567, 586 (9th Cir. 2004), cert. denied, 126 S.Ct. 419 (2005).

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Habeas Petition now that jurisdiction once again is vested in this Court so that Petitioner may voluntarily dismiss his pending appeal. Respectfully submitted this 11th day of May, 2006.

By /s/ Tonya J. McMath Tonya J. McMath Attorney for Petitioner Copy of the foregoing filed/delivered via the CM/ECF system this 11th day of May, 2006 and delivered to the following ECF registered recipients: J. D. Nielsen Assistant Attorney General 1275 West Washington Phoenix, AZ 85007 By /s/ T. McMath

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