Harris v. Gipson

Filing 46

ORDER signed by Magistrate Judge Allison Claire on 6/17/14 ORDERING that petitioners request for an extension of time to file a request for a certificate of appealability (ECF No. 45 ) is DENIED as moot.(Dillon, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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WILLIAM JAMES HARRIS,

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Petitioner,

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No. 2:12-cv-02846 LKK AC P

v.

ORDER

CONNIE GIPSON,

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Respondent.

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Petitioner, a state prisoner proceeding pro se, has filed an application for a writ of habeas

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corpus pursuant to 28 U.S.C. § 2254. A review of this court’s docket indicates that petitioner’s

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writ of habeas corpus was denied by this court on April 21, 2014. ECF No. 42. By the same

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order, the district judge denied petitioner a certificate of appealability. Id. Petitioner was

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required to file a notice of appeal within thirty days of the entry of final judgment on April 21,

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2014. See Fed. R. App. P. 4(a)(1)(A). No such notice of appeal was filed by petitioner.
Instead, petitioner filed a request for a thirty day extension of time to file a request for a

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certificate of appealability. ECF No. 45. By application of the prison mailbox, petitioner’s

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request was filed on May 26, 2014;1 it was not docketed in this court until June 13, 2014. Id.

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However, it is not clear from the case caption whether petitioner intended to file the motion in the

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See Houston v. Lack, 487 U.S. 266 (1988) (pro se prisoner’s filings may be construed as filed
on the date they were submitted to prison authorities for mailing).
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Ninth Circuit Court of Appeals or in this court. Since the request bears the correct case number

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for petitioner’s habeas proceeding in this court, the request for an extension of time to file a

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certificate of appealability will be denied as moot. This court denied a certificate of appealability

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on April 21, 2014 in its final order denying habeas corpus relief.

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If petitioner intended to file the request in the Ninth Circuit Court of Appeals, he was

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required to first file a timely notice of appeal of this court’s final judgment. See Fed. R. App. P.

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4. Petitioner did not do so.

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Therefore, IT IS HEREBY ORDERED that petitioner’s request for an extension of time to
file a request for a certificate of appealability (ECF No. 45) is denied as moot.
DATED: June 17, 2014

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