Wells v. Lizarraga

Filing 44

ORDER signed by Magistrate Judge Allison Claire on 8/9/2022 ORDERING that within twenty-one days of the service of this order, respondent shall file a response to petitioner's Motion. Petitioner may file a reply within fourteen days of the service of the response. (Mena-Sanchez, L)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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CHRISTOPHER KELLY WELLS,

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Petitioner,

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No. 2:16-cv-2807 WBS AC P

v.

ORDER

JOE A. LIZARRAGA,

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Respondent.

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Petitioner, a state prisoner proceeding pro se, has filed a motion requesting that the court

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correct the filing date of his notice of appeal or grant relief from potential default. ECF No. 43.
On July 19, 2022, the court received petitioner’s application for a certificate of

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appealability, which was dated July 9, 2022, and was construed as a notice of appeal. ECF No.

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39. Petitioner has now filed a motion in which he avers that he followed proper prison legal mail

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procedures and submitted a notice of appeal for mailing on either May 12 or 13, 2022, and

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attaches a copy of the notice. Id. at 2, 4, 5. It does not appear that the court ever received

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petitioner’s notice of appeal, which differs from his application for a certificate of appealability.

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Petitioner requests that the court find his notice of appeal was timely filed. Respondent will be

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required to respond to the motion.

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Accordingly, IT IS HEREBY ORDERED that within twenty-one days of the service of

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this order, respondent shall file a response to petitioner’s motion. Petitioner may file a reply

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within fourteen days of the service of the response.

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DATED: August 9, 2022

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