Gaddy v. Hedgpeth

Filing 41

ORDER signed by Magistrate Judge Jennifer L. Thurston on 3/23/2012 construing 40 Motion for Extension of time to file appeal as Notice of Change of Address and directing Clerk of Court to change petitioner's mailing address.(Lundstrom, T)

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IN THE UNITED STATES DISTRICT COURT FOR THE

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EASTERN DISTRICT OF CALIFORNIA

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MICHAEL GADDY,

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1:09-cv-01203-AWI-JLT (HC)

Petitioner,

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ORDER CONSTRUING PETITIONER’S
THIRD MOTION FOR EXTENSION OF
TIME TO FILE APPEAL AS NOTICE OF
CHANGE OF ADDRESS (Doc. 40)

vs.
A. HEDGPETH,

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Respondent.

ORDER DIRECTING CLERK OF THE
COURT TO CHANGE PETITIONER’S
MAILING ADDRESS

________________________________/

Petitioner is a prisoner proceeding pro se in a habeas corpus action pursuant to 28 U.S.C.

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§ 2254. On December 23, 2011, Petitioner’s case was dismissed and judgment was entered.

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(Doc. 34). On February 6, 2012, Petitioner filed a motion to extend time to file an appeal. (Doc.

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36). In that motion, Petitioner contended that the notice of the Court’s ruling was sent to Salinas

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Valley State Prison, but that Petitioner had previously been transferred to Pelican Bay State

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Prison. (Doc. 36, p. 1). Because of the delay, Petitioner alleged he did not receive notice of the

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Court’s ruling until January 25, 2012. (Id.). Petitioner requested an additional thirty days within

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which to file his notice of appeal.

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On February 10, 2012, the Court granted Petitioner’s motion, relying on Rule 4(a)(6) of
the Federal Rules of Appellate Procedure, which authorizes the district court to reopen the period

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for filing the notice of appeal where it has been established that the appellant did not receive the

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entry of judgment. (Doc. 37). Nunley v. City of Los Angeles, 52 F.3d 792, 799 (9th cir. 1995).

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As such, the Court did not need to reach the question of whether the request comported with Rule

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4(a)(5), i.e., excusable neglect or good cause, but instead analyzed the request solely under Rule

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4(a)(6). Nunley, 52 F.3d at 799.

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On March 12, 2012, Petitioner filed a second motion for extension of time pursuant to

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Rule 4(a)(5), requesting an additional thirty days due to his lack of access to the prison law

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library. On March 16, 2012, the Court granted Petitioner’s motion for an extension of time of

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fifteen days. (Doc. 39). On March 19, 2012, the Court received Petitioner’s third motion for

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extension of time to file his notice of appeal. (Doc. 40). In that motion, which was mailed to the

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Court before Petitioner could have received the March 16, 2012 order and which is therefore

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obviously directed to the Court’s February 10, 2012 order, Petitioner advises the Court that the

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previous order was still sent to Salinas Valley State Prison, not his current place of incarceration,

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i.e., Pelican Bay State Prison. Petitioner requests that the Court change Petitioner’s address to

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reflect his present place of incarceration. Petitioner also contends that he needs additional time

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to file his notice of appeal.

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Since the instant motion was filed only three days after the Court’s order granting the

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second motion for extension of time had been served, the Court is satisfied that Petitioner will

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have adequate time to file his Notice of Appeal within the time provided by the Court in granting

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the second motion for extension of time. Accordingly, the Court will construe the motion as a

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notice of change of address and direct the Clerk of the Court accordingly.

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ORDER

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For the foregoing reasons, it is HEREBY ORDERED as follows:

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1.

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Petitioner’s third motion for extension of time (Doc. 40), is CONSTRUED as a
notice of change of address; and,

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The Clerk of the Court is DIRECTED to change Petitioner’s address of record to

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the following:

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Michael Gaddy #J-02095
Pelican Bay State Prison
P.O. Box 7500
Crescent City, CA 95531

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IT IS SO ORDERED.

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Dated: March 23, 2012
9j7khi

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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