Steward v. Lynch et al

Filing 50

ORDER signed by Magistrate Judge Kendall J. Newman on 08/03/21 DENYING 49 Request for certificate of appealability. (Plummer, M)

Case 2:18-cv-01227-KJM-KJN Document 50 Filed 08/03/21 Page 1 of 2
1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

DONNY STEWARD,

12
13
14
15

No. 2:18-cv-1227 KJM KJN P

Plaintiff,
v.

ORDER

LYNCH, et al.,
Defendants.

16
17

On June 16, 2021, plaintiff filed a document styled, “Request for Certificate of

18

Appealability.” (ECF No. 49.) However, certificates of appealability are not applicable in civil

19

rights cases. 28 U.S.C. § 2253. Rather, they may be requested only in petitions for writ of habeas

20

corpus under 28 U.S.C. § 2254 or motions to vacate or set aside federal sentences under 28

21

U.S.C. § 2255. Therefore, plaintiff’s request for certificate of appealability is improperly filed.

22

Moreover, this civil rights action was terminated on July 29, 2020, at plaintiff’s request.

23

Thus, to the extent he wishes to file an appeal, such request is untimely. An appeal “from a

24

district court to a court of appeals may be taken only by filing a notice of appeal with the district

25

clerk within the time allowed by Rule 4.” Fed. R. App. P. 3(a)(1). The notice of appeal “must be

26

filed with the district clerk within 30 days after entry of the judgment or order appealed from.”

27

Fed. R. App. P. 4(a)(1)(A). However, the district court may extend the time to file a notice of

28

appeal if “a party so moves no later than 30 days after the time prescribed by this Rule 4(a)
1

Case 2:18-cv-01227-KJM-KJN Document 50 Filed 08/03/21 Page 2 of 2
1

expires,” and “shows excusable neglect or good cause.” Fed. R. App. P. 4(a)(5)(A). “No

2

extension under this Rule 4(a)(5) may exceed 30 days after the prescribed time or 14 days after

3

the date when the order granting the motion is entered, whichever is later.” Fed. R. App. P.

4

4(a)(5)(C).

5

Here, to the extent plaintiff is attempting to appeal the July 29, 2020 dismissal, such

6

request is untimely, and this court is without authority to extend such deadline. Fed. R. App. P.

7

4(a)(5)(C).

8
9

Accordingly, IT IS HEREBY ORDERED that plaintiff’s request (ECF No. 49) is denied.
Dated: August 3, 2021

10
11
12
13

/stew1227.coad

14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
2