Hoffman v. Copenhaver

Filing 25

ORDER Directing Clerk of Court to Serve Document on Petitioner; ORDER Reopening Time to File Appeal, signed by Magistrate Judge Erica P. Grosjean on 12/16/15. (Verduzco, M)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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MARCELLAS HOFFMAN,

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Case No. 1:15-cv-00122-EPG-HC

Petitioner,

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ORDER DIRECTING CLERK OF COURT
TO SERVE DOCUMENT ON PETITIONER

v.

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ORDER REOPENING TIME TO FILE
APPEAL

ANDRE MATEVOUSIAN,

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Respondent.

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Petitioner Marcellas Hoffman is a federal prisoner proceeding pro se with a petition for

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18 writ of habeas corpus pursuant to 28 U.S.C. § 2241. On February 11, 2015, the Court dismissed
19 the Petition. (ECF No. 7). On May 18, 2015, the Court granted the motion to withdraw as
20 attorney. (ECF No. 16). That same day, Petitioner filed his first motion for reconsideration of the
21 Court’s order dismissing the case. (ECF No. 17). On June 17, 2015, the Court denied Petitioner’s
22 motion for reconsideration. (ECF No. 18). On July 13, 2015, Petitioner filed a second motion for
23 reconsideration. (ECF No. 19). On July 30, 2015, the Court denied Petitioner’s second motion
24 for reconsideration. (ECF No. 20).
On December 15, 2015, Petitioner filed the instant motion, alleging he never received the

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26 Court’s July 30th order denying his second motion for reconsideration. (ECF No. 21).
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27 Additionally, it appears that Petitioner wishes to pursue some sort of appeal. When one of the

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The Court notes that it previously declined to issue a certificate of appealability. (ECF No. 7 at 8).

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1 parties is a United States officer or employee sued in an official capacity, the time for filing a
2 notice of appeal is 60 days after entry of the judgment or order appealed from. Fed. R. App. P.
3 4(a)(1)(B). However, the Court may reopen the time to file an appeal for a period of 14 days if:
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(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;

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(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

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(C) the court finds that no party would be prejudiced.

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10 Fed. R. App. P. 4(a)(6).
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The Court construes the instant motion as a motion to reopen the time to file an appeal.

12 See Bernhardt v. Los Angeles County, 339 F.2d 920, 925 (9th Cir. 2003) (courts have a duty to
13 construe pro se pleadings and motions liberally); Castro v. United States, 540 U.S. 375, 381-82
14 (2003) (courts may recharacterize a pro se motion to “create a better correspondence between the
15 substance of a pro se motion’s claim and its underlying legal basis”). The Court finds that
16 Petitioner did not receive notice under Federal Rule of Civil Procedure 77(d) of entry of the
17 Court’s order denying Petitioner’s second motion for reconsideration within 21 days after entry.
18 The Court further finds that the motion has been timely filed and that no party would be
19 prejudiced by reopening the time to file an appeal of the order.
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Accordingly, the Court HEREBY ORDERS:

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The Clerk of the Court is DIRECTED to SERVE a copy of the July 30th order

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denying Petitioner’s second motion for reconsideration (ECF No. 20) on

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Petitioner.

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2.

The time to file an appeal is reopened. If Petitioner wishes to pursue an appeal of

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the Court’s July 30th order denying his second motion for reconsideration, the

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Notice of Appeal SHALL BE FILED within FOURTEEN (14) days after entry

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of this order. See Fed. R. App. P. 4(a)(6).

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IT IS SO ORDERED.
Dated:

December 16, 2015

/s/
UNITED STATES MAGISTRATE JUDGE

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