McHenry v. Felker

Filing 37

ORDER by Judge Jeffrey S. White denying 35 Motion for Relief From Judgment; denying 36 Motion For Relief From Judgment; denying 30 Motion to Appoint Counsel (Attachments: # 1 Appendix Certificate of Service) (tlS, COURT STAFF) (Filed on 2/25/2011)

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McHenry v. Felker Doc. 37 1 2 3 4 5 6 7 8 9 10 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA BOBBY T. MCHENRY, Petitioner, vs. TOM FELKER, Warden, Respondent. / No. C 07-2334 JSW (PR) ORDER DENYING MOTIONS FOR RELIEF FROM JUDGMENT AND FOR APPOINTMENT OF COUNSEL (Docket Nos. 30, 35, 36) United States District Court 11 For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 This is a habeas corpus case filed pro se by a state prisoner pursuant to 28 U.S.C. 2254. On June 29, 2010, the petition was denied, a certificate of appealability was denied, and judgment was entered. On August 13, 2010, Petitioner filed a notice of appeal that he had signed on August 9, 2010. On October 4, 2010, the United States Court of Appeals for the Ninth Circuit dismissed the appeal because the notice of appeal was not timely. Thereafter, Petitioner filed two motions for relief from judgment in this Court. In these motions, Petitioner seeks relief from the Ninth Circuit's order dismissing the appeal, not from the judgment of this Court. Specifically, he argues that the notice of appeal should be deemed timely because he had earlier filed in the Ninth Circuit a motion for an extension of time to file the notice of appeal. Even if this Court could ascertain the timeliness of the motion for an extension of time, which it cannot because the motion was not filed here, this Court cannot provide relief from an order and Dockets.Justia.com 1 2 3 4 5 6 7 8 9 10 mandate of the Ninth Circuit. Petitioner must seek such relief in the Ninth Circuit, not here, as it was the Ninth Circuit that found his appeal to be untimely. Petitioner's motions for relief from judgment (docket numbers 35, 36) are DENIED. His motion for appointment of counsel (docket number 30) is also DENIED. IT IS SO ORDERED. DATED: February 25, 2011 JEFFREY S. WHITE UNITED STATES DISTRICT JUDGE United States District Court 11 For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2

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