Sargent v. Clay

Filing 23

ORDER denying 22 Motion for Certificate of Appealability signed by Circuit Judge N. Randy Smith on 10/3/12. (Matson, R)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JEFFREY S. SARGENT,

No. 2:07-CV-02001-NRS

vs.
I.D. CLAY, WARDEN

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ORDER

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Before the Court is Petitioner’s Motion for Certificate of Appealability

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(“COA”). For the reasons set forth below, the Motion is denied.

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On August 6, 2010, the Court entered an order dismissing Petitioner’s

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habeas petition. Judgement was entered on the same day. On September 1, 2010,

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Petitioner filed the instant Motion. However, Petitioner never filed a notice of

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appeal. The timely filing of a notice of appeal is a jurisdictional requirement.

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Scott v. Younger, 739 F.2d 1464, 1466 (9th Cir. 1984). Here, the time limit for

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filing a notice of appeal following entry of judgment is thirty days. See Fed. R.

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App. P. 4(a). Because Petitioner failed to file a notice of appeal within thirty days

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of entry of judgment, the U.S. Court of Appeals for the Ninth Circuit no longer has

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jurisdiction over any appeal that may be contemplated by Petitioner.

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The Ninth Circuit has held that the issuance of a certificate of probable

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cause cannot vest the court of appeals with jurisdiction if jurisdiction is not proper
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in that court. Hayward v. Britt, 572 F.2d 1324, 1325 (9th Cir. 1978). The same

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rationale applies to a certificate of appealability. Because Petitioner did not file a

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timely notice of appeal, a jurisdictional bar has been raised stripping the Ninth

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Circuit of jurisdiction. Granting a certificate of appealability cannot lift that bar.

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Accordingly, the court declines to issue a certificate of appealability. Petitioner’s

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Motion is DENIED.

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IT IS SO ORDERED.

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DATED: October 3, 2012

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Honorable N. Randy Smith

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Ninth Circuit Court of Appeals Judge

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