Taylor v. Ayers

Filing 30

ORDER GRANTING 27 PETITIONER'S REQUEST FOR EXTENSION OF TIME TO FILE NOTICE OF APPEAL AND CERTIFICATE OF APPEALABILITY. (mmcsec, COURT STAFF) (Filed on 10/22/2010)

Taylor v. Ayers

Doc. 30

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 KENNETH LEE TAYLOR, ) ) ) Petitioner, ) ) v. ) ROBERT AYERS, Warden, ) ) ) Respondent. _____________________________ ) No. C 07-4147 MMC (PR) ORDER GRANTING PETITIONER'S REQUEST FOR EXTENSION OF TIME TO FILE NOTICE OF APPEAL AND CERTIFICATE OF APPEALABILITY (Docket No. 27) IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

On August 13, 2007, petitioner, a California prisoner proceeding pro se, filed the

United States District Court

19 above-titled petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Thereafter, 20 the Court granted respondent's motion to dismiss the petition as untimely, and, on June 24, 21 2010, judgment was entered in favor of respondent. That same date, the Clerk mailed a copy 22 of the order of dismissal and judgment to petitioner at his address at San Quentin State 23 Prison, the most recent address he had provided to the Court. 24 On August 5, 2010, petitioner sent to the Court a letter seeking an extension of time to 25 file a request for a certificate of appealability ("COA"), on the ground he did not receive the 26 Court's order and judgment until July 21, 2010, due to his transfer to Pelican Bay State 27 28

For the Northern District of California

Dockets.Justia.com

1 Prison.1 The Court construes the above-referenced letter as a request for an extension of time 2 to file a notice of appeal. Cf. Tinsley v. Borg, 895 F.2d 520, 523 (9th Cir. 1990) (treating 3 timely pro se motion for certificate of appealability as timely notice of appeal). 4 Federal Rule of Appellate Procedure 4(a) is the exclusive avenue for relief from the 5 expiration of the period to file a timely notice of appeal. See In re Stein, 197 F.3d 421, 4266 27 (9th Cir. 2000). Rule 4(a)(5) allows for an extension of time to appeal if the party 7 requests such relief within thirty days of the expiration of the time to file the notice and 8 shows excusable neglect or good cause. See Fed. R. App. P. 4(a)(5). The extension must be 9 to a date no more than thirty days after the original deadline, or fourteen days after the entry 10 of the order granting the motion, whichever is later. See id 11 GOOD CAUSE APPEARING, petitioner's motion for an extension of time to file a 12 notice of appeal and COA is hereby GRANTED. Petitioner shall file the notice of appeal 13 and COA within fourteen days of the date this order is filed. 14 Petitioner also asks the Court for an order informing prison officials that petitioner has 15 a court deadline for filing the notice of appeal and COA, so that he may be provided with 16 priority user status in the prison law library. To the extent petitioner seeks a separate order 17 setting forth such deadline, the request is denied, as petitioner may provide a copy of the 18 instant order to prison officials for that purpose. 19 20 This order terminates Docket No. 27.
IT IS SO ORDERED.

21 DATED: October 22, 2010 22 23 24 25 26

____________________________ MAXINE M. CHESNEY United States District Judge

Petitioner states in his letter that he sent to the district court in "February or March of 2010" a notice of his change of address to Pelican Bay State Prison. (Docket No. 27 at 1:2328 24.) The docket, however, contains no entry reflecting the court's receipt of any such notice. 27
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