Bueno v. Frauenheim

Filing 27

ORDER signed by District Judge Garland E. Burrell, Jr., on 7/6/17 ORDERING that Petitioner's 22 Motion for Extension to File a Notice of Appeal is GRANTED. Petitioner's 23 Notice of Appeal is timely filed. (cc: USCA) (Kastilahn, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JOHN MARK BUENO,

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Petitioner,

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No. 15-cv-00206-GEB-EFB

v.

ORDER GRANTING MOTION TO EXTEND
TIME TO FILE A NOTICE OF APPEAL

SCOTT FRAUNEHEIM,

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Respondent.

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Petitioner John Mark Bueno, a state prisoner proceeding

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in propria persona, filed an untimely appeal from the judgment

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and moves for an order extending the time within which he could

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file a notice of appeal.

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of habeas corpus under 28 U.S.C. § 2254.

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to a United States Magistrate Judge under Eastern District of

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California

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December

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recommendations, recommending denial of Petitioner’s application

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for

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denying Petitioner’s application for a writ of habeas corpus was

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adopted on February 24, 2017, and judgment was entered on the

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same date.

a

Local

15,

writ

Rule

2016,

of

Petitioner filed a petition for a writ

302

the

habeas

and

28 U.S.C.

magistrate

corpus.

The matter was referred

ECF

§ 636(b)(1)(B).

judge

No. 17.

filed

The

findings

On
and

recommendation

ECF Nos. 20–21.

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Under Federal Rule of Appellate Procedure 4(a)(1)(A),

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Petitioner was required to file a notice of appeal “with the

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district [court] clerk within 30 days after entry of the judgment
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or order appealed from,” specifically, on or before March 27,

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2017.

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April 20, 2017.

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the

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Regardless of Petitioner’s untimely notice of appeal, Federal

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Appellate Procedure Rule 4(a)(5) prescribes that even after the

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time for timely notice of appeal expires, it may be extended if a

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“party shows excusable neglect or good cause” for the untimely

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notice of appeal and moves within 30 days of the expiration.

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However, Petitioner did not file a notice of appeal until

time

for

The

ECF No. 23.
filing

Ninth

the

Circuit

He simultaneously moved to extend
notice

of

explains

appeal.

in

Pincay

ECF

v.

No. 22.

Andrews,

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389 F.3d 853 (9th Cir. 2004) (en banc), that when determining

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whether excusable neglect exists, factors to consider “include:

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(1) the danger of prejudice to the non-moving party, (2) the

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length of delay and its potential impact on judicial proceedings,

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(3) the reason for the delay, including whether it was within the

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reasonable control of the movant, and (4) whether the moving

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party's conduct was in good faith,” id. at 855.

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Petitioner contends he satisfies the excusable neglect

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standard, declaring that he “know[s] almost nothing about the

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law,” and “did not know how to appeal a judgment, or . . . the

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time to file a notice of appeal.”

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No. 22, at 2:6-7.

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Decl. of Pet’r ¶ 2, ECF

Petitioner has shown that his filing

delay was presumably the result of [his]
carelessness and neglect . . . in determining
the proper filing deadline. [Further], there
is no evidence that Petitioner’s delay in
filing
was
the
result
of
bad
faith.
Accordingly, a balancing of these factors
militates in favor of finding excusable
neglect and granting Petitioner’s motion for
an extension of time to file a notice of
appeal.
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De-Louis-Conti v. Evans, No. C 05-2245 SBA (pr), 2011 WL 175394,

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at *2 (N.D. Cal. Jan. 19, 2011).

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Therefore, Petitioner’s Motion for Extension to File a

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Notice of Appeal, ECF No. 22, is GRANTED; and Petitioner’s Notice

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of Appeal, ECF No. 23, is timely filed.

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shall send a copy of this Order to the Ninth Circuit.

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IT IS SO ORDERED.
Dated:

July 6, 2017

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The Clerk of the Court