McIntosh v. Richardson et al

Filing 26

ORDER it appears that all of the requirements of Rule 4(a)(6) have been satisfied. Petitioner did not receive notice of the Court's entry of judgment or the accompanying order within 21 days after entry, he filed his notice of appeal (deemed t o be a motion for extension of time) within 14 days of receiving the documents, and it appears no party will be prejudiced by the delay occasioned by these events. As a result, the Court grants Petitioner motion for extension of time to file his appe al. His notice of appeal (Doc. 21 ) is deemed to be timely filed. Petitioner need not file an additional notice of appeal. A copy of this Order shall be served on the United States Court of Appeals for the Ninth Circuit, and shall reference case No. 12-15086. Signed by Judge David G Campbell on 4/5/2012. (KMG)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Sheldon McIntosh,
Petitioner,

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No. CV11-0702-PHX-DGC
ORDER

vs.
Shelton Richardson, et. al.,
Respondents.

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The Ninth Circuit has construed Petitioner’s notice of appeal as a motion to reopen

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the time for appeal under Federal Rule of Appellate Procedure 4(a)(6), and has remanded

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the matter to this Court for the limited purpose of ruling on Petitioner’s motion. The

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Court will grant the motion.

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The

Court’s

order

accepting

Magistrate

Judge

Aspey’s

Report

and

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Recommendation (Doc. 16), and its accompanying judgment (Doc. 17), were mailed to

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Petitioner on November 15, 2011.

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undeliverable on December 1, 2011. Doc. 18. On December 12, 2011, Petitioner filed a

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notice of change of address stating that he had been moved from a facility in

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Leavenworth, Kansas, to a facility in Washington, Missouri. Doc. 19. Although the

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notice was received on December 12, 2011, it was mailed by Petitioner on November 23,

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2011. Doc. 19 at 2. Thus, it appears likely that Petitioner was no longer housed at the

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Leavenworth facility when the Court’s Order and Judgment arrived, explaining why they

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were returned to this Court as undelivered.

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The documents were returned to the Court as

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Copies of the Court’s Order and Judgment were re-mailed to Petitioner at his new

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address on December 12, 2011. Petitioner’s notice of appeal asserts that he received the

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documents on December 16, 2011.

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December 22, 2011. Id.

Doc. 21.

He filed his notice of appeal on

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Given these circumstances, it appears that all of the requirements of Rule 4(a)(6)

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have been satisfied. Petitioner did not receive notice of the Court’s entry of judgment or

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the accompanying order within 21 days after entry, he filed his notice of appeal (deemed

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to be a motion for extension of time) within 14 days of receiving the documents, and it

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appears no party will be prejudiced by the delay occasioned by these events. As a result,

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the Court grants Petitioner motion for extension of time to file his appeal. His notice of

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appeal (Doc. 21) is deemed to be timely filed. Petitioner need not file an additional

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notice of appeal.

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A copy of this Order shall be served on the United States Court of Appeals for the
Ninth Circuit, and shall reference case No. 12-15086.
Dated this 5th day of April, 2012.

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