Pathan v. Carey

Filing 20

ORDER DENYING Request to File a Late Appeal. Signed by Judge Thelton E. Henderson on 10/20/08. (Attachments: # 1 Certificate of Service)(rbe, COURT STAFF) (Filed on 10/21/2008)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Petitioner, a prisoner of the State of California, filed a pro se petition for a writ of habeas corpus challenging the constitutionality of his state conviction. This Court denied the petition on the merits on October 17, 2007 (docket no. 17). Petitioner filed a request to file a tardy appeal and request for a certificate of appealability on June 27, 2008 (docket no. 9). The request to file a late appeal must be denied because it is untimely. Relief from the deadline for a timely notice of appeal may be obtained by a motion in the district court under Rule 4(a) of the Federal Rules of Appellate Procedure. Rule 4(a)(5) concerns motions for extension of time and Rule 4(a)(6) concerns motions to reopen time to file an appeal. Petitioner's request was filed too late to obtain relief under either Rule 4(a)(5) or Rule 4(a)(6). Rule 4(a) provides the exclusive avenue for relief from the expiration of the period to file a timely notice of appeal. See In re Stein, 197 F.3d 421, 426-27 (9th Cir. 2000). And Rule 4(a) is enforced without distinction between litigants represented by counsel and those appearing pro se. See Clarke v. Lavallie, 204 F.3d IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA ATIK PATHAN, Petitioner, vs. TOM CAREY, Warden, Respondent. ) ) ) ) ) ) ) ) ) ) ) No. C 05-2124 TEH (PR) ORDER DENYING REQUEST TO FILE A LATE APPEAL (Docket no. 19)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

1038, 1041 (10th Cir. 2000). For the foregoing reasons, the request to file a late appeal is DENIED (docket no. 19). SO ORDERED. DATED: 10/20/08

THELTON E. HENDERSON United States District Judge

2