                                                                           FILED
                             NOT FOR PUBLICATION                            MAR 02 2010

                                                                        MOLLY C. DWYER, CLERK
                      UNITED STATES COURT OF APPEALS                     U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



 WILLIAM SANFORD GADD,                           No. 07-16968

               Petitioner - Appellant,           D.C. No. 06-cv-00651-RCC

   v.

 UNITED STATES OF AMERICA,                       MEMORANDUM *

               Respondent - Appellee.



                     Appeal from the United States District Court
                              for the District of Arizona
                      Raner C. Collins, District Judge, Presiding

                            Submitted February 16, 2010 **

Before:        FERNANDEZ, GOULD, and M. SMITH, Circuit Judges.

        Federal prisoner William Sanford Gadd appeals pro se from the district

court’s denial of the motion he filed pursuant to Federal Rule of Civil Procedure

60(b). We have jurisdiction pursuant to 28 U.S.C. § 1291, and we dismiss.

          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

JC/Research
        Gadd contends the district court erred by denying his motion based on

procedural grounds. “[W]here the underlying judgment has been appealed, denial

of a motion for relief from that judgment is a nonappealable order.” Gould v.

Mutual Life Ins. Co. of N.Y., 790 F.2d 769, 772 (9th Cir. 1986). The proper

procedure to seek Rule 60(b) relief during the pendency of an appeal is to ask the

district court whether it wishes to entertain the motion, or to grant it, and then

move this court, if appropriate, for remand of the case. Scott v. Younger, 739 F.2d

1464, 1466 (9th Cir. 1984). “If that route is not taken, an appeal of the denial of

the [Rule 60(b) motion] is subject to dismissal.” Gould, 790 F.2d at 772.

        In this case, the district court dismissed Gadd’s habeas corpus petition.

Gadd then filed a notice of appeal. While his appeal was pending, he filed a Rule

60(b) motion in the district court. However, Gadd failed to follow the proper

procedure in seeking to have the district court rule on his Rule 60(b) motion.

Accordingly, we dismiss Gadd’s appeal. See Scott, 739 F.2d at 1466.

        Finally, we deny Gadd’s request to expand the certificate of appealability to

include his claim that the district court in West Virginia did not have jurisdiction to

indict him. See Hiivala v. Wood, 195 F.3d 1098, 1103-05 (9th Cir. 1999)

(per curiam).

        DISMISSED.


JC/Research                                 2                                       07-16968
