Morgande v. Tilton et al

Filing 37

ORDER signed by Circuit Judge Mary M. Schroeder on 3/9/2012 ORDERING 36 Morgande's motion to reopen the case is DENIED. In order that Morgande may seek review of this decision, Morgande's motion for a certificate of appealability is GRANTED on the issue of whether this court has the authority to reopen the time to appeal. (Reader, L)

1
2
3
4
5
6
7
8

IN THE UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10

SACRAMENTO DIVISION

11
12
13
14
15
16
17

BEGOIA MORGANDE,

)
)
Petitioner,
)
v.
)
)
JAMES E. TILTON, Secretary of California )
Department of Corrections and Rehabilitation, )
et al.,
)
)
Respondents.
)
_____________________________________ )

Case No. 2:07-CV-1824-MMS
ORDER

18
19

Petitioner Begoia Morgande filed a petition for a writ of habeas corpus on

20

September 5, 2007. This court denied that petition in an order and judgment

21

entered on August 13, 2009. On January 5, 2012, Morgande filed a motion asking

22

the court to reopen the time to file a notice of appeal and for a certificate of

23

appealability. He claimed that he never received notice of the judgment despite

24

updating his address within the California prison system. This court denied that

25

motion on January 13, 2012, in an order that stated “After 180 days of the

26

judgment, this court lacks the authority to reopen the time to appeal. See Fed. R.

27

Civ. P. 77(d); Fed. R. App. P. 4(a)(6)(B); Bowles v. Russell, 551 U.S. 205, 214

28

(2007).”

1

Morgande has now filed a second motion asking to reopen the case and for a

2

certificate of appealability. This court still lacks the authority to reopen the time to

3

appeal after 180 days have passed since judgment. Although courts in the past

4

could use Rule 60 to reopen the time to appeal, this is no longer possible after the

5

1991 amendments to the Rules. See In re Stein, 197 F.3d 421, 425-26 (9th Cir.

6

1999).

7

Morgande’s motion to reopen the case is DENIED. In order that Morgande

8

may seek review of this decision, Morgande’s motion for a certificate of

9

appealability is GRANTED on the issue of whether this court has the authority to

10

reopen the time to appeal.

11
12

DATED:

March 9, 2012

13
14
15
16

/s/ Mary M. Schroeder
MARY M. SCHROEDER,
United States Circuit Judge
Sitting by designation

17
18
19
20
21
22
23
24
25
26
27
28

2