Henson v. Griem

Filing 23

ORDER signed by District Judge John A. Mendez on 11/29/2017 GRANTING 17 Motion for Extension of Time. As stated in the Remand Order, Petitioner need not file a new notice of appeal. The clerk is DIRECTED to serve a copy of this decision on the Ninth Circuit. CC'd USCA. (Hunt, G)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JOHN HENSON, 12 13 14 15 No. 2:16-cv-1908-JAM-EFB Petitioner, v. DARREN GRIEM, Captain, ORDER GRANTING MOTION FOR EXTENSION OF TIME TO FILE AN APPEAL Respondent. 16 17 The Court issued its Order adopting the magistrate judge’s 18 Findings and Recommendations (“F&R”) and dismissing John Henson’s 19 (“Petitioner”) petition without leave to amend on June 29, 2017. 20 Order, ECF No. 12. 21 has no tenable claim for relief. 22 Petitioner failed to exhaust his state court remedies. See id. at 23 3 (“[P]etitioner’s claims are totally unexhausted.”). 24 Order, the Court also declined to issue a certificate of 25 appealability. In doing so, the Court found that Petitioner See F&R, ECF No. 11, at 1–2. In its Order at 2. 26 Petitioner was required to file a notice of appeal with the 27 district clerk within thirty days after entry of the judgment or 28 order appealed from. Fed. R. App. P. 4. 1 On August 3, 2017, 1 Petitioner filed a Motion for Extension of Time to file his 2 appeal. 3 was processed to the Ninth Circuit. 4 2017, the Ninth Circuit remanded the matter to this Court for the 5 limited purpose of allowing the Court to rule on Petitioner’s 6 Motion for Extension of Time. ECF No. 17. The motion remained pending as the appeal ECF No. 19. On November 29, Remand Order, ECF No. 22. 7 Under Federal Rule of Appellate Procedure 4, the district 8 court may reopen the time to file an appeal for a period of 14 9 days after the date when its order to reopen is entered. The 10 district court may only do so if (A) the court finds that the 11 moving party did not receive notice under Fed. R. Civ. P. 77(d) 12 of the entry of the judgment or order sought to be appealed 13 within 21 days after entry, (B) the motion is filed within 180 14 days after the judgment or order is entered or within 14 days 15 after the moving party receives notice under Fed. R. Civ. P. 16 77(d) of the entry, and (C) the court finds that no party would 17 be prejudiced. 18 Fed. R. App. P. 4(a)(6). The Court finds the above criteria have been met in this 19 case. First, Petitioner’s motion and the docket in this case show 20 that Petitioner did not receive notice of the entry of judgment. 21 See Mot. at 1 (“Prisoner never received notice of magistrate 22 judge’s ‘Report and Recommendations’ or the court’s final 23 order[.]”); ECF Docket, July 10, 2017 (“Mail Returned as 24 Undeliverable, Not in Custody.”). 25 within 180 days after judgment was entered. 26 nature of this case, there is no prejudice to Respondent. 27 28 Second, the motion was filed Third, given the Although motions under Rule 4(a)(6) are typically subject to the local rules regarding notice, the Court finds that departure 2 1 from those rules is appropriate under the circumstances. 2 v. City of L.A., 52 F.3d 792 (1995) (“[W]e hold that notice in 3 accordance with the local rules is required under Rule 4(a)(6), 4 . . . . 5 from local rules, including the service requirements, where it 6 makes sense to do so and substantial rights are not at stake.”). 7 This case involves a habeas petition which was summarily 8 dismissed for failure to exhaust state remedies. 9 not affect the rights and interests of a private party apart from 10 11 Nunley However, a district judge has broad discretion to depart The motion does Petitioner. For the reasons set forth above, the Court GRANTS 12 Petitioner’s Motion for Extension of Time. 13 Remand Order, Petitioner need not file a new notice of appeal. 14 The clerk is directed to serve a copy of this decision on the 15 Ninth Circuit. 16 17 IT IS SO ORDERED. Dated: November 29, 2017 18 19 20 21 22 23 24 25 26 27 28 3 As stated in the

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