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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1 2 3 4 UNITED STATES DISTRICT COURT 5 EASTERN DISTRICT OF CALIFORNIA 6 7 JOHN MARK BUENO, 8 Petitioner, 9 10 No. 15-cv-00206-GEB-EFB v. ORDER GRANTING MOTION TO EXTEND TIME TO FILE A NOTICE OF APPEAL SCOTT FRAUNEHEIM, 11 Respondent. 12 13 Petitioner John Mark Bueno, a state prisoner proceeding 14 in propria persona, filed an untimely appeal from the judgment 15 and moves for an order extending the time within which he could 16 file a notice of appeal. 17 of habeas corpus under 28 U.S.C. § 2254. 18 to a United States Magistrate Judge under Eastern District of 19 California 20 December 21 recommendations, recommending denial of Petitioner’s application 22 for 23 denying Petitioner’s application for a writ of habeas corpus was 24 adopted on February 24, 2017, and judgment was entered on the 25 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. 26 Under Federal Rule of Appellate Procedure 4(a)(1)(A), 27 Petitioner was required to file a notice of appeal “with the 28 district [court] clerk within 30 days after entry of the judgment 1 1 or order appealed from,” specifically, on or before March 27, 2 2017. 3 April 20, 2017. 4 the 5 Regardless of Petitioner’s untimely notice of appeal, Federal 6 Appellate Procedure Rule 4(a)(5) prescribes that even after the 7 time for timely notice of appeal expires, it may be extended if a 8 “party shows excusable neglect or good cause” for the untimely 9 notice of appeal and moves within 30 days of the expiration. 10 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, 11 389 F.3d 853 (9th Cir. 2004) (en banc), that when determining 12 whether excusable neglect exists, factors to consider “include: 13 (1) the danger of prejudice to the non-moving party, (2) the 14 length of delay and its potential impact on judicial proceedings, 15 (3) the reason for the delay, including whether it was within the 16 reasonable control of the movant, and (4) whether the moving 17 party's conduct was in good faith,” id. at 855. 18 Petitioner contends he satisfies the excusable neglect 19 standard, declaring that he “know[s] almost nothing about the 20 law,” and “did not know how to appeal a judgment, or . . . the 21 time to file a notice of appeal.” 22 No. 22, at 2:6-7. 23 24 25 26 27 28 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. 2 1 De-Louis-Conti v. Evans, No. C 05-2245 SBA (pr), 2011 WL 175394, 2 at *2 (N.D. Cal. Jan. 19, 2011). 3 Therefore, Petitioner’s Motion for Extension to File a 4 Notice of Appeal, ECF No. 22, is GRANTED; and Petitioner’s Notice 5 of Appeal, ECF No. 23, is timely filed. 6 shall send a copy of this Order to the Ninth Circuit. 7 8 IT IS SO ORDERED. Dated: July 6, 2017 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 The Clerk of the Court

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