Opinion
Criminal No. 3:02-cr-47-01.
November 20, 2007
ORDER
Before the Court are twelve different motions filed by Defendant Michael Gerald Gamboa (docs. #435-#446), including a motion under 28 U.S.C. § 2255 (doc. #436). In February 2007, Gamboa filed a notice of appeal (doc. #428), appealing the Court's order dated January 12, 2007 (doc. #425).
Generally, the filing of a notice of appeal is a jurisdictional event, divesting the district court of jurisdiction in the case.See United States v. Curry, 328 F.3d 970, 972 (8th Cir. 2003) (holding that a frivolous double jeopardy challenge does not divest the district court of jurisdiction, while a "colorable" challenge does). The appeal in Gamboa's case is still pending. Rule 4(b) of the Rules Governing Section 2255 Proceedings for Section 2255 Proceedings requires the Court to conduct a preliminary review of the merits of the motion.
While a § 2255 is technically a separate civil lawsuit, it is clearly intertwined with the underlying criminal case. Because the Eighth Circuit's ruling on appeal may effect Gamboa's 2255 motion, the Court finds it should not conduct this preliminary review of Gamboa's § 2255 motion until the Circuit has addressed his appeal. The Court will promptly review the motion after the Eighth Circuit announces its decision.
Many of the motions filed with the § 2255 motion involve matters the Court addresses after its preliminary review (docs. #438, #440-#446). Three motions are collateral to the § 2255 motion review and strictly procedural to the district court (docs #435, #437, #439). Therefore, the Court may address those.
Motion to File Affidavit Under Seal
Motion to Proceed Without Prepayment of Fees
GRANTED. 28 U.S.C. § 2255DENIED AS MOOT. GRANTED.
IT IS SO ORDERED.