Henson v. Griem
Filing
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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
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