Morgande v. Tilton et al

Filing 42

MANDATE of USCA as to 36 Motion for Certificate of Appealability: The judgment of this Court, entered 4/12/2012, takes effect this date. (Michel, G)

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UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT FILED MAY 04 2012 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS BEGOIA MORGANDE, Petitioner - Appellant, v. JAMES E. TILTON and D. K. SISTO, No. 12-15528 D.C. No. 2:07-cv-01824-MMS U.S. District Court for Eastern California, Sacramento MANDATE Respondents - Appellees. The judgment of this Court, entered April 12, 2012, takes effect this date. This constitutes the formal mandate of this Court issued pursuant to Rule 41(a) of the Federal Rules of Appellate Procedure. FOR THE COURT: Molly C. Dwyer Clerk of Court Synitha Walker Deputy Clerk FILED APR 12 2012 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT BEGOIA MORGANDE, Petitioner - Appellant, v. MOLLY C. DWYER, CLERK U .S. C O U R T OF APPE ALS No. 12-15528 D.C. No. 2:07-cv-01824-MMS Eastern District of California, Sacramento JAMES E. TILTON and D. K. SISTO, ORDER Respondents - Appellees. Before: PREGERSON, CANBY, and FISHER, Circuit Judges. A review of the record demonstrates that this court lacks jurisdiction over this appeal because the February 1, 2012 notice of appeal, dated January 26, 2012, was not filed or delivered to prison officials within 30 days after the district court’s judgment entered on August 13, 2009. See 28 U.S.C. § 2107(a); United States v. Sadler, 480 F.3d 932, 937 (9th Cir. 2007) (requirement of timely notice of appeal is jurisdictional). The district court did not abuse its discretion in denying appellant’s motion to reopen the time to appeal pursuant to Federal Rule of Appellate Procedure 4(a)(6) because the motion was untimely. See Nunley v. City of Los Angeles, 52 F.3d 792, 794 (9th Cir. 1995); see also Fed. R. App. P. 4(a)(6)(B) (motion must be filed within 180 days after entry of judgment or within MF/Pro Se 14 days after receiving notice of entry of judgment, whichever is earlier). To date, appellant has not filed a notice of appeal from the district court’s order entered on March 9, 2012. Consequently, this appeal is dismissed for lack of jurisdiction. DISMISSED. MF/Pro Se 2 12-15528

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