US v. Kevin Gedeon, No. 12-7688 (4th Cir. 2013)

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CORRECTED OPINION UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-7688 UNITED STATES OF AMERICA, Plaintiff Appellee, v. KEVIN GEDEON, a/k/a Cash, Defendant - Appellant. Appeal from the United States District Court for the Northern District of West Virginia, at Martinsburg. John Preston Bailey, Chief District Judge. (3:09-cr-00030-JPB-JES-2; 3:11-cv-00069JPB) Submitted: February 26, 2013 Decided: March 15, 2013 Before WILKINSON, NIEMEYER, and DAVIS, Circuit Judges. Affirmed as modified by unpublished per curiam opinion. Kevin Gedeon, Appellant Pro Se. Thomas Oliver Mucklow, Assistant United States Attorney, Martinsburg, West Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: In United States v. Gedeon, 487 F. App x 822 (4th Cir. 2012) (No. 12-6959), we denied a certificate of appealability and dismissed Kevin Gedeon s appeal from the district court s order adopting the recommendation of the magistrate judge and denying Gedeon s 28 U.S.C.A. ยง 2255 (West Supp. 2012) motion. During the pendency of that appeal, Gedeon filed in the district court a motion recommendation. merits. to file objections to the report and The district court denied that motion on the Gedeon now appeals. We affirm for the reason set forth within. [A] federal district court and a federal court of appeals should not attempt to assert jurisdiction over a case simultaneously. Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58 (1982). Therefore, a timely-filed 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 in the appeal. Dixon v. Edwards, 290 F.3d 699, 709 n.14 (4th Cir. 2002) (quoting Griggs, 459 U.S. at 58). Though not based on statutory provisions or rules of procedure, this rule was devised by courts in the context of civil appeals to avoid confusion or waste of time resulting from having the same issues before two courts at the same time. United States v. Montgomery, 262 F.3d 233, 239-40 (4th Cir. 2 2001) (internal quotation marks omitted). Consequently, jurisdiction over a particular subject or issue is exercised by only one court at a time, and a district court may not interfere with [an appellate court s] jurisdiction by amending a decision that is under appellate review. United States v. McHugh, 528 F.3d 538, 540 (7th Cir. 2008). Although there are exceptions to this doctrine, such exceptions generally pertain to issues either wholly collateral to those raised in the appeal or in aid of the appeal. See Sheet Metal Workers Int l Ass n Local 19 v. Herre Bros., Inc., 198 F.3d 391, 394 (3d Cir. 1999); Montgomery, 262 F.3d at 23940. No exception applies in this case. Here, 12-6959 the deprived filing the of the district notice court of of appeal in jurisdiction No. over Gedeon s motion for leave to file objections to the magistrate judge s report and recommendation. Accordingly, we grant a certificate of appealability for the purpose of modifying the district court s order to reflect that the motion was denied for want of dispense jurisdiction with contentions are oral and affirm argument adequately the order because presented in the the as modified. facts We and legal materials before this court and argument would not aid the decisional process. AFFIRMED AS MODIFIED 3