Thao v. On Habeas Corpus

Filing 33

ORDER signed by Magistrate Judge Kendall J. Newman on 11/9/15 GRANTING 32 Motion for Extension of time. Petitioner shall file his notice of appeal on or before November 28, 2015. No further extensions of time will be granted. The Clerk of the Court is directed to send a copy of this order to petitioner.(Dillon, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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LUE SENG THAO,

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No. 2:14-cv-1791 WBS KJN P

Petitioner,
v.

ORDER

CLARK E. DUCART,
Respondents.

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Petitioner is a state prisoner. On September 29, 2015, petitioner’s pro se application for a

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petition for writ of habeas corpus was dismissed for failure to meet the applicable statute of

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limitations. (ECF No. 30.) The court issued the certificate of appealability referenced in 28

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U.S.C. § 2253 on the issue of whether petitioner is entitled to equitable tolling. (Id. at 2.)

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On November 2, 2015, plaintiff filed with this court a motion for a sixty-day extension of
time in which to brief the issue of the certificate of appealability. (ECF No. 32.)
Petitioner appears to have misunderstood the appeals process. The United States Court of

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Appeals for the Ninth Circuit may eventually require briefing on the issue of the certificate of

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appealability. In the meantime, petitioner is subject to, and must comply with, the strict time

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limitations provided for filing an appeal under the Federal Rules of Appellate Procedure. See

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Fed. R. App. P. 4(a)(5)(C).

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An appeal “from a district court to a court of appeals may be taken only by filing a notice
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of appeal with the district clerk within the time allowed by Rule 4.” Fed. R. App. P. 3(a)(1). The

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notice of appeal “must be filed with the district clerk within 30 days after entry of the judgment or

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order appealed from.” Fed. R. App. P. 4(a)(1)(A). However, the district court may extend the

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time to file a notice of appeal if “a party so moves no later than 30 days after the time prescribed

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by this Rule 4(a) expires,” and “shows excusable neglect or good cause.” Fed. R. App. P.

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4(a)(5)(A).

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The court will construe plaintiff’s motion for an extension of time in which to file a brief

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regarding the certificate of appealability as a motion for an extension of time in which to file a

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notice of appeal. The proof of service attached to plaintiff’s motion states that petitioner

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deposited the motion for mailing “in a receptacle so provided at Pelican Bay State Prison” on

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October 28, 2015. This date was twenty-nine days after the order of dismissal was issued, and

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therefore, under the “prison mailbox” rule of Houston v. Lack, 487 U.S. 266 (1988), appears to

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meet the deadline set forth in Federal Rule of Appellate Procedure 4(a)(5)(A)(i).

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The question, then, is whether plaintiff has “show[n] excusable neglect or good cause,”

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Fed. R. App. P. 4(a)(5)(A)(ii), for the grant of an extension of time in which to file a notice of

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appeal. In his motion, petitioner states that he filed a request for law library access on September

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13, 2015 in anticipation of a need to research the issue of the certificate of appealability.

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However, as of October 28, 2015, petitioner had not once been permitted to access the law

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library. (ECF No. 32 at 2.) Petitioner adds: “Because petitioner did not yet get a chance to go to

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the law library to study and research on this matter petitioner do not know what to file.” (sic) (Id.

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at 3.) On the basis of these facts, the court finds that petitioner has shown good cause for an

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extension of time in which to file a notice of appeal.

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The Federal Rules of Appellate Procedure dictate the length of time available for

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extensions to file a notice of appeal. Specifically, Rule 4(a)(5)(C) provides that “[n]o extension

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under this Rule 4(a)(5) may exceed 30 days after the prescribed time or 14 days after the date

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when the order granting the motion is entered, whichever is later.” Fed. R. App. P. 4(a)(5)(C).

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Here, judgment was entered on September 29, 2015. Petitioner’s time to appeal expired
on October 29, 2015. Therefore, the undersigned may extend petitioner’s time to appeal another
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thirty days, to November 28, 2015. However, petitioner is strongly cautioned that no further

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extensions of time for filing may be granted. “The procedures set forth in rule 4 are strictly

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construed; there is no exception for prisoners proceeding pro se or for habeas corpus actions.”

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Malone v. Avenenti, 850 F.2d 569, 572 (9th Cir. 1988). Petitioner is advised that if he intends to

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file a notice of appeal, he must file the notice on or before November 28, 2015.1 Fed. R. App. P.

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4(a)(5)(C). This court lacks the power to grant plaintiff any further extensions of time in which to

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file a notice of appeal.

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In accordance with the above, IT IS HEREBY ORDERED that:

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1. Petitioner’s pro se motion for extension of time to file an appeal (ECF No. 32) is

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granted.

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2. Petitioner shall file his notice of appeal on or before November 28, 2015. No further
extensions of time will be granted.

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3. The Clerk of the Court is directed to send a copy of this order to petitioner.
Dated: November 9, 2015

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/thao1791.app

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Federal Rule of Appellate Procedure 3(c)(1) sets forth the specific information the notice of
appeal must contain: “The notice of appeal must: (A) specify the party or parties taking the
appeal by naming each one in the caption or body of the notice, but an attorney representing more
than one party may describe those parties with such terms as ‘all plaintiffs,’ ‘the defendants,’ ‘the
plaintiffs A, B, et al.,’ or ‘all defendants except X’; (B) designate the judgment, order, or part
thereof being appealed; and (C) name the court to which the appeal is taken.” Fed. R. App. P.
3(c)(1). Petitioner does not require court transcripts in order to complete the notice of appeal.
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