Galvan v. Horel

Filing 44

ORDER DENYING 43 Motion to File Late Notice of Appeal signed by District Judge Dale A. Drozd on 7/5/2017. (Jessen, A)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 NOEL PONCE GALVAN, 12 13 14 15 No. 1:07-cv-01482-DAD-EPG Petitioner, v. ORDER DENYING MOTION TO FILE LATE NOTICE OF APPEAL ROBERT A. HOREL, (Doc. No. 43) Respondent. 16 17 Petitioner is a state prisoner who proceeded pro se with a petition for writ of habeas 18 corpus pursuant to 28 U.S.C. § 2254. On March 29, 2010, the court denied the petition and 19 entered judgment. (Doc. Nos. 41, 42.) 20 More than seven years later, on May 10, 2017, the court received from petitioner the 21 instant motion, wherein he requests leave to file a late notice of appeal. (Doc. No. 43.) Petitioner 22 supports his motion with his own declaration in which he states that he is unable to speak, read, or 23 write in English, and that he is not sophisticated in the law. Petitioner also states that the inmate 24 who had been assisting him was transferred into protective custody with petitioner’s legal 25 documents and that it took petitioner two months to retrieve his documents. The court concludes 26 that petitioner has not established that he is entitled to the requested relief. 27 28 The time for filing a notice of appeal is 30 days after entry of the judgment or order appealed from. Fed. R. App. P. 4(a)(1)(A). However, the district court may reopen the time to 1 1 file an appeal for a period of 14 days if: 2 (A) the court finds that the moving party did not receive notice under Federal Rule of Civil Procedure 77(d) of the entry of the judgment or order sought to be appealed within 21 days after entry; 3 4 (B) the motion is filed within 180 days after the judgment or order is entered or within 14 days after the moving party receives notice under Federal Rule of Civil Procedure 77(d) of the entry, whichever is earlier; and 5 6 (C) 7 8 the court finds that no party would be prejudiced. Fed. R. App. P. 4(a)(6). 9 Here, petitioner does not allege that he did not receive notice of the entry of judgment or 10 order denying his petition within 21 days after its entry. Rather, petitioner asserts that he could 11 not file a timely notice of appeal due to a language barrier and lack of legal sophistication. Based 12 on petitioner’s representations, the court cannot reopen the time to file an appeal under Rule 13 4(a)(6) of the Federal Rules of Appellate Procedure. Accordingly, petitioner’s motion for leave to file a late notice of appeal (Doc. No. 43) is 14 15 denied. 16 IT IS SO ORDERED. 17 Dated: July 5, 2017 UNITED STATES DISTRICT JUDGE 18 19 20 21 22 23 24 25 26 27 28 2

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