USA v. Gamboa et al

1
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
SOUTHEASTERN DIVISION
United States of America, 	)
)
Plaintiff, 	)
) 	Criminal No. 3:02-cr-47-01
vs. 	)
)
Michael Gerald Gamboa 	)
)
Defendant. 	)
O R D E R
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.
Case 3:02-cr-00047-PDW Document 448 Filed 11/20/07 Page 1 of 3

2
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
Gamboa first asks this Court to allow the affidavit of
Rolando Rios Gamboa be filed under seal because it may contain
privileged information. 	The Court agrees the information may be
privileged. 	Furthermore, Rolando Rios Gamboa’s testimony should
be preserved. 	Therefore, the Motion for Leave to File Under Seal
the Affidavit of Rolando Rios Gamboa (doc. #435) is GRANTED.
Motion to Proceed Without Prepayment of Fees
Gamboa has moved to proceed without the prepayment of fees
(doc. #437). 	The United States District Court for the District
of North Dakota does not require a filing fee for motions under
28 U.S.C. § 2255. 	The Court will address other funding concerns
that may arise after the Court’s preliminary review at that time.
This motion is DENIED AS MOOT.
Case 3:02-cr-00047-PDW Document 448 Filed 11/20/07 Page 2 of 3

3
Motion for Extension of Page Limitation
Finally, Gamboa asks the Court for permission to file a
brief in excess of the page limitation of Local Rule 7.2. 	The
Court agrees this case is complicated, and Gamboa should be
allowed to fully address the issues he believes are present.
This motion is GRANTED.
IT IS SO ORDERED.
Dated this 20th day of November, 2007.
Case 3:02-cr-00047-PDW Document 448 Filed 11/20/07 Page 3 of 3