Ardoin v. McDonald

Filing 27

ORDER by Judge Edward M. Chen Granting 24 Petitioner's Motion to Extend Time to File a Notice of Appeal; and Construing Notice of Appeal as Timely Filed. (Attachments: # 1 Certificate of Service). (emcsec, COURT STAFF) (Filed on 5/6/2013)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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ERIC ARDOIN,

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Petitioner,
v.

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For the Northern District of California

United States District Court

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No. C-11-5564 EMC (pr)

MIKE McDONALD,

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Respondent.
___________________________________/

ORDER GRANTING PETITIONER’S
MOTION TO EXTEND TIME TO FILE
A NOTICE OF APPEAL; AND
CONSTRUING NOTICE OF APPEAL AS
TIMELY FILED
(Docket Nos. 23-24)

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

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was entered in favor of Respondent on February 13, 2013. Petitioner has filed (Docket No. 23) a

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notice of appeal (“NOA”), and a motion for an extension of time to file the NOA. (Docket No. 24.)

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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 NOA in the district court within the time allowed by Fed. R. App. P. (“FRAP”)

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

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4(a)(1). Under this rule, Petitioner should have filed his NOA no later than March 15, 2013. His

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NOA was filed roughly two weeks after that, on April 1, 2013. (Though stamped as received on

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April 8th, 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).)

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Relief from the deadline for filing an NOA may be obtained by a motion in the district court
under FRAP 4(a)(5) (motion for an extension of time) or 4(a)(6) (motion to reopen time to file

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

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days of the expiration of the time to file the notice and shows an excusable neglect or good cause.

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Here, that means that under FRAP 4(a)(5), Petitioner must have requested an extension of

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time within 30 days after March 15, 2013, viz., on or before April 14, 2013. Petitioner’s motion was

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signed on April 1, 2013, and therefore is timely filed within the meaning of FRAP 4(a)(5). The

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Court also finds that Petitioner has shown good cause.

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The extension having been granted, the Court construes the already-filed NOA (Docket No.

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23) as timely filed. The Clerk of the Court shall amend the docket to reflect this conclusion and

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shall process Petitioner’s appeal.
This order disposes of Docket No. 24.

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For the Northern District of California

United States District Court

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IT IS SO ORDERED.

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Dated: May 6, 2013

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_________________________
EDWARD M. CHEN
United States District Judge

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