Patterson v. Small

Filing 22

ORDER DENYING PETITIONER'S SECOND REQUEST FOR EXTENSION OF TIME TO FILE NOTICE OF APPEAL. Signed by Judge Maxine M. Chesney on May 10, 2011. (mmcsec, COURT STAFF) (Filed on 5/10/2011)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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)
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Petitioner,
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v.
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LARRY SMALL, Warden, )
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Respondent.
________________________ )
NORMAN PATTERSON,

No. C 08-5423 MMC (PR)
ORDER DENYING PETITIONER’S
SECOND REQUEST FOR EXTENSION
OF TIME TO FILE NOTICE OF
APPEAL
(Docket No. 20)

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On August 6, 2010, the Court granted respondent’s motion to dismiss as untimely the

19 above-titled pro se petition for a writ of habeas corpus; judgment was entered that same date.
For the Northern District of California

United States District Court

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20 On October 21, 2010, the Court granted petitioner’s first request for an extension of time to
21 file a notice of appeal and instructed petitioner to file the notice of appeal within 14 days, i.e.,
22 by November 4, 2010. (Docket No. 19.) On November 4, 2010, rather than filing a notice of
23 appeal, petitioner filed a second request for an extension of time to file a notice of appeal. As
24 set forth below, the request must be denied as untimely.
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Rule 4(a)(5)(C) of the Federal Rules of Appellate Procedure provides: “No

26 extension under this Rule 4(a)(5) may exceed 30 days after the prescribed time or 14 days
27 after the date when the order granting the motion is entered, whichever is later.” The
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1 “prescribed time” referenced therein is 30 days after entry of judgment, as set forth in Rule
2 4(a)(1), which, in this case, was September 6, 2010. Consequently, this Court only had
3 authority to extend petitioner’s deadline to the later of 30 days thereafter, which was October
4 6, 2010, or 14 days from its October 21 order granting the first extension of time, which was
5 November 4, 2010. Nor can the case be reopened to permit petitioner to file a timely notice
6 of appeal, as petitioner cannot show he did not receive notice of the entry of the judgment
7 within 21 days after entry. See Fed. R. Civ. P. 4(a)(6)(A).
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Accordingly, petitioner’s second request for an extension of time to file a notice of

9 appeal is hereby DENIED.
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This order terminates Docket No. 20.
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IT IS SO ORDERED.
DATED: May 10, 2011
____________________________
MAXINE M. CHESNEY
United States District Judge

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