Noel v. Walker

Filing 38

ORDER by Judge Edward M. Chen 37 Granting Petitioner's Motion to Extend Time to File a Notice of Appeal; and Denying Motion for the Appointmen of Counsel on Appeal. (Attachments: # 1 Certificate of Service). (emcsec, COURT STAFF) (Filed on 6/21/2012)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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PATRICK E. NOEL,

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v.

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For the Northern District of California

United States District Court

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Petitioner,

GREG LEWIS, Warden,

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Respondent.
___________________________________/

No. C-08-3777 EMC (PR)
ORDER GRANTING PETITIONER’S
MOTION TO EXTEND TIME TO FILE
A NOTICE OF APPEAL; AND
DENYING MOTION FOR THE
APPOINTMENT OF COUNSEL ON
APPEAL
(Docket No. 37)

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This is a closed federal habeas corpus action filed by a pro se state prisoner pursuant to 28

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U.S.C. § 2254. The petition was denied and judgment was entered in favor of respondent on May

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10, 2012. Petitioner now moves for an extension of time to file a notice of appeal,1 and to appoint

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counsel for purposes of his appeal. (Docket No. 37).

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Petitioner’s motion for an extension of time is GRANTED. An appeal of right may be taken

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only by filing a valid notice of appeal in the district court within the time allowed by Fed. R. App. P.

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(“FRAP”) 4. See FRAP 3(a)(1). The notice of appeal must be filed within 30 days after judgment is

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entered. See FRAP 4(a)(1). Relief from the deadline for filing a notice of appeal may be obtained

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by a motion in the district court under FRAP 4(a)(5) (motion for an extension of time) or 4(a)(6)

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(motion to reopen time to file appeal). FRAP 4(a)(5) allows a motion for an extension of time if the

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party requests it within thirty days of the expiration of the time to file the notice and shows an

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Petitioner at times says “Certificate of Appealability” (“COA”). The Court construes
Petitioner to mean Notice of Appeal. All the same, any motion for an extension of time to file a
Certificate of Appealability is DENIED as moot, the Court having declined to issue a COA in its
order denying the petition.

No. C-08- 3777 EMC (PR)
ORDER EXTENDING TIME

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excusable neglect or good cause. Petitioner’s motion was signed on June 3, 2012, and therefore is

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timely filed within the meaning of FRAP 4(a)(5). (Though stamped as received by this Court on

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June 15, for purposes of the present motion the Court assumes that Petitioner put the motion in the

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prison mail the day he signed it and will use that as the filing date under the prisoner mailbox rule.

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See generally Houston v. Lack, 487 U.S. 266, 276 (1988).) The Court also finds that Petitioner has

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shown good cause.

prescribed time [viz., 30 days from the date of entry of judgment] or 14 days after the date when the

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order granting the motion is entered, whichever is later.” FRAP 4(a)(5)(C). Here, that is 30 days

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from June 9, 2012. Accordingly, Petitioner must file his notice of appeal on or before July 9,

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For the Northern District of California

“No extension under this rule 4(a)(5) may exceed 30 days after the expiration of the

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United States District Court

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2012.

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Petitioner’s motion to appoint counsel for purposes of his appeal is DENIED. There is no

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right to counsel in habeas corpus actions. See Knaubert v. Goldsmith, 791 F.2d 722, 728 (9th Cir.

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1986). However, 18 U.S.C. § 3006A(a)(2)(B) authorizes a district court to appoint counsel to

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represent a habeas petitioner whenever “the court determines that the interests of justice so require”

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and such person is financially unable to obtain representation. The decision to appoint counsel is

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within the discretion of the district court, see Chaney v. Lewis, 801 F.2d 1191, 1196 (9th Cir. 1986),

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and should be granted only when exceptional circumstances are present. See generally 1 J. Liebman

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& R. Hertz, Federal Habeas Corpus Practice and Procedure § 12.3b at 383-86 (2d ed. 1994).

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Petitioner has not shown that there are exceptional circumstances warranting appointment of

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counsel. Petitioner may of course ask the federal appellate court for the appointment of counsel.

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This order disposes of Docket No. 37.

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IT IS SO ORDERED.

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Dated: June 21, 2012

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_________________________
EDWARD M. CHEN
United States District Judge

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No. C-08- 3777 EMC (PR)
ORDER EXTENDING TIME