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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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JOHN HENSON,

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No.

2:16-cv-1908-JAM-EFB

Petitioner,
v.
DARREN GRIEM, Captain,

ORDER GRANTING MOTION FOR
EXTENSION OF TIME TO FILE AN
APPEAL

Respondent.

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The Court issued its Order adopting the magistrate judge’s

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Findings and Recommendations (“F&R”) and dismissing John Henson’s

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(“Petitioner”) petition without leave to amend on June 29, 2017.

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Order, ECF No. 12.

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has no tenable claim for relief.

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Petitioner failed to exhaust his state court remedies. See id. at

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3 (“[P]etitioner’s claims are totally unexhausted.”).

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Order, the Court also declined to issue a certificate of

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appealability.

In doing so, the Court found that Petitioner
See F&R, ECF No. 11, at 1–2.

In its

Order at 2.

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Petitioner was required to file a notice of appeal with the

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district clerk within thirty days after entry of the judgment or

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order appealed from.

Fed. R. App. P. 4.
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On August 3, 2017,

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Petitioner filed a Motion for Extension of Time to file his

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appeal.

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was processed to the Ninth Circuit.

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2017, the Ninth Circuit remanded the matter to this Court for the

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limited purpose of allowing the Court to rule on Petitioner’s

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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.

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Under Federal Rule of Appellate Procedure 4, the district

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court may reopen the time to file an appeal for a period of 14

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days after the date when its order to reopen is entered.

The

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district court may only do so if (A) the court finds that the

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moving party did not receive notice under Fed. R. Civ. P. 77(d)

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of the entry of the judgment or order sought to be appealed

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within 21 days after entry, (B) the motion is filed within 180

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days after the judgment or order is entered or within 14 days

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after the moving party receives notice under Fed. R. Civ. P.

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77(d) of the entry, and (C) the court finds that no party would

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be prejudiced.

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Fed. R. App. P. 4(a)(6).

The Court finds the above criteria have been met in this

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case. First, Petitioner’s motion and the docket in this case show

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that Petitioner did not receive notice of the entry of judgment.

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See Mot. at 1 (“Prisoner never received notice of magistrate

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judge’s ‘Report and Recommendations’ or the court’s final

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order[.]”); ECF Docket, July 10, 2017 (“Mail Returned as

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Undeliverable, Not in Custody.”).

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within 180 days after judgment was entered.

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nature of this case, there is no prejudice to Respondent.

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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
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from those rules is appropriate under the circumstances.

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v. City of L.A., 52 F.3d 792 (1995) (“[W]e hold that notice in

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accordance with the local rules is required under Rule 4(a)(6),

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. . . .

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from local rules, including the service requirements, where it

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makes sense to do so and substantial rights are not at stake.”).

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This case involves a habeas petition which was summarily

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dismissed for failure to exhaust state remedies.

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not affect the rights and interests of a private party apart from

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Nunley

However, a district judge has broad discretion to depart

The motion does

Petitioner.
For the reasons set forth above, the Court GRANTS

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Petitioner’s Motion for Extension of Time.

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Remand Order, Petitioner need not file a new notice of appeal.

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The clerk is directed to serve a copy of this decision on the

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Ninth Circuit.

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IT IS SO ORDERED.
Dated: November 29, 2017

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As stated in the