Androshchuk v. Biter
Filing
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ORDER signed by Magistrate Judge Allison Claire on 11/22/2017 that within 14 days of the filing of this order, respondent may file a response to 44 Motion for Extension of Time. (York, M)
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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EDUARD VLADIMIROV
ANDROSHCHUK,
Petitioner,
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ORDER
v.
M. ELIOT SPEARMAN,
Respondent.
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No. 2:15-cv-1204 MCE AC P
Petitioner, a state prisoner proceeding pro se, has filed a response to an order from the
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Ninth Circuit Court of Appeals and a motion for an extension of time to file a notice of appeal.
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ECF Nos. 43, 44.
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Petitioner has filed a response to an order from the Ninth Circuit Court of Appeals in
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which he states he is voluntarily dismissing his appeal of this court’s March 31, 2017 order. ECF
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No. 43. This court will not take any action with respect to plaintiff’s notice of voluntary
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dismissal because it is moot, as the Ninth Circuit has already dismissed the appeal for failure to
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prosecute. ECF No. 42. Petitioner is advised that in the future, filings intended for the Ninth
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Circuit must be captioned for and sent to that court.
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Petitioner has also filed a motion for extension of time to file a notice of appeal of the
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October 11, 2017 order granting his motion for reconsideration and granting respondent’s motion
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to dismiss (ECF No. 40). ECF No. 44. The certificate of service states that the motion was
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mailed on November 5, 2017 (ECF No. 43 at 4), making it timely under the prison mailbox rule,
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Houston v. Lack, 487 U.S. 266, 276 (1988). However, the motion was not received by the court
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until November 20, 2017. Given the length of time between the asserted mailing date and the
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date the motion was received by the court, respondent will be given an opportunity to respond to
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the motion for extension, including whether the motion was timely. See Fed. R. App. P.
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4(a)(5)(B).
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Accordingly, IT IS HEREBY ORDERED that, within fourteen days of the filing of this
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order, respondent may file a response to petitioner’s motion for an extension of time.
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DATED: November 22, 2017
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