Bluitt v. Martel

Filing 52

ORDER GRANTING MOTION TO EXTEND TIME TO FILE A NOTICE OF APPEAL; ORDER CONSTRUING MOTION AS A NOTICE OF APPEAL. Signed by Judge Richard Seeborg on 2/25/13. (Attachments: # 1 Appendix Certificate of Service)(cl, COURT STAFF) (Filed on 2/26/2013)

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*E-Filed 2/26/13*

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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United States District Court
For the Northern District of California

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SAN FRANCISCO DIVISION

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GREGORY BLUITT,
Petitioner,

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No. C 09-3994 RS (PR)
ORDER GRANTING MOTION TO
EXTEND TIME TO FILE A NOTICE
OF APPEAL;

v.
MICHAEL MARTEL, Warden,

ORDER CONSTRUING MOTION AS
A NOTICE OF APPEAL

Respondent.
/

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This is a closed federal habeas corpus action. The petition was denied and judgment

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was entered in favor of respondent on December 10, 2012. Petitioner now moves for an

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extension of time to file a notice of appeal (“NOA”). (Docket No. 48.)

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

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taken only by filing a valid NOA in the district court within the time allowed by Fed. R. App.

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

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entered. See FRAP 4(a)(1). Under this rule, petitioner should have filed his NOA no later

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than January 11, 2013. His notice was filed nearly a month later, on February 9, 2013.

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Relief from the deadline for filing an NOA may be obtained by a motion in the district

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court under FRAP 4(a)(5) (motion for an extension of time) or 4(a)(6) (motion to reopen time

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No. C 09-3994 RS (PR)
ORDER OF DISMISSAL

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

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within thirty days of the expiration of the time to file the notice and shows an excusable

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neglect or good cause.

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Petitioner’s motion was signed on February 9, 2013, and therefore is timely filed

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

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February 14, for purposes of the present motion the Court assumes that petitioner put the

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motion in the prison mail the day he signed it and will use that as the filing date under the

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prisoner mailbox rule. See generally Houston v. Lack, 487 U.S. 266, 276 (1988).) The Court

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also finds that petitioner has shown good cause.

United States District Court
For the Northern District of California

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Because petitioner clearly intends to appeal this Court’s judgment, the Court

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construes the present motion, which was timely filed within the extension period, as a timely-

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filed NOA. The Clerk of the Court shall amend the docket to reflect this conclusion and

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shall process petitioner’s appeal. The Clerk shall terminate Docket No. 48, and process the

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appeal.

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IT IS SO ORDERED.
DATED: February 25, 2013
RICHARD SEEBORG
United States District Judge

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No. C 09-3994 RS (PR)
ORDER OF DISMISSAL