Muhammad v. Diaz

Filing 37

ORDER signed by Senior Judge James K. Singleton on 9/22/2014 DENYING 36 Motion for an Extension of Time to file a notice of appeal; INFORMING the petitioner that he must appeal to the Ninth Circuit Court of Appeals within 30 days if he so wishes; DIRECTING the petitioner to include with said appeal, a copy of the appellate brief he claims he has already prepared. (Michel, G)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
MAURICE MUHAMMAD,
No. 2:13-cv-00153-JKS
Petitioner,
vs.

ORDER
[Re: Motion at Docket No. 36]

JOE PILKINGTON, Correctional
Commander, Delano Modified Community
Correctional Facility,
Respondent.

In an order dated June 19, 2014, this Court denied Maurice Muhammad, a state prisoner
proceeding pro se, habeas corpus relief. Docket Nos. 33, 34. The Court, however, granted
Muhammad a certificate of appealability with respect to his interrelated claims that the trial
judge prejudiced the jury with comments about the capture and death of Osama bin Laden and
that trial and appellate counsel were ineffective for failing to alleviate any potential problems
caused by the judge’s comments. Id. At Docket No. 36, Muhammad filed a letter dated August
21, 2014, which was docketed on September 11, 2014, requesting information from this Court.
In that letter, Muhammad asserts that he sent a letter to the Ninth Circuit Court of Appeals
requesting permission to file his appellate brief, but the Ninth Circuit failed to respond, and he is
unsure how to proceed. Docket No. 36. The record indicates, however, that Muhammad has not
yet filed a notice of appeal with this Court, which is the first step required for appealing from
this Court’s denial of his habeas petition. See FED. R. APP. P. 4(a)(1)(A); Rule 11(b), Rules
Governing Section 2254 Cases in the United States District Court (Federal Rule of Appellate
Procedure 4(a) governs the time to appeal an order, and a timely notice of appeal must be filed
even if the district court issues a certificate of appealability). A notice of appeal from a

judgment rendered under 28 U.S.C. § 2254 must be filed within 30 days after entry of the
judgment. FED. R. APP. P. 4(a)(1)(A). Because more than 30 days have elapsed since this Court
denied Muhammad habeas relief, this Court will construe Muhammad’s motion as a request for
an extension of time to file a notice of appeal.
Federal Rule of Appellate Procedure 4(a)(5) provides that the Court may extend the time
to file a notice of appeal when two conditions are met. First, the motion seeking an extension
must be made no later than 30 days after the expiration of the time originally prescribed by Rule
4(a) (in this case, the request for an extension must be made within 60 days after the judgment
was entered because the time originally prescribed by Rule 4(a) is 30 days). FED. R. APP. P.
4(a)(5)(A)(i). Second, the party seeking the extension must show “excusable neglect or good
cause.” FED. R. APP. P. 4(a)(5)(A)(ii). In any event, no extension under Rule 4(a)(5) may
exceed 30 days after the expiration of the time originally prescribed by Rule 4(a), or 14 days
after the date when the order granting the motion is entered, whichever is later. FED. R. APP. P.
4(a)(5)(C).
Muhammad’s request for an extension to file a notice of appeal was made more than 60
days after the entry of this Court’s June 19, 2014, order, and accordingly must be denied. See
Pettibone v. Cupp, 666 F.2d 333, 334 (9th Cir. 1981) (“The 30-day time limit of Rule 4(a) is
mandatory and jurisdictional.”).

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IT IS THEREFORE ORDERED THAT the motion for an extension of time to file a
notice of appeal at Docket No. 36 is DENIED. If Muhammad wishes to appeal to the Ninth
Circuit Court of Appeals, he must do so do so within 30 days of the entry of this order. FED. R.
APP. P. 4(a)(1)(A). He should include with that appeal a copy of the appellate brief which he
claims he has already prepared.
Dated: September 22, 2014.

/s/James K. Singleton, Jr.
JAMES K. SINGLETON, JR.
Senior United States District Judge

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