Barkley v. Nuehring

Filing 21

ORDER by Judge Claudia Wilken CONSTRUING 20 REQUEST FOR EXTENSION OF TIME AS TIMELY NOTICE OF APPEAL; DIRECTING CLERK TO TRANSMIT FILE TO THE NINTH CIRCUIT. (Attachments: # 1 Certificate/Proof of Service) (ndr, COURT STAFF) (Filed on 11/8/2012)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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CHRIS BARKLEY,

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No. C 10-5389 CW (PR)

Petitioner,
v.
JAMES NUEHRING, Warden,

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Respondent.

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ORDER CONSTRUING REQUEST FOR
EXTENSION OF TIME AS TIMELY
NOTICE OF APPEAL; DIRECTING
CLERK TO TRANSMIT FILE TO THE
NINTH CIRCUIT
/

(Docket no. 20)

On September 30, 2012, the Court issued an order denying on

United States District Court
For the Northern District of California

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the merits the instant pro se petition for a writ of habeas corpus,

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denied a certificate of appealability and entered judgment in favor

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of Respondent.

Docket nos. 17 & 18.

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On October 30, 2012, Petitioner, who is incarcerated in

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Tutwiler, Mississippi, signed, and prison officials deposited in

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the mail, a request for an extension of time to file a notice of

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appeal.

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Docket no. 20.

Applying the mailbox rule and liberally construing

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Petitioner's request, the Court construes the request as a timely-

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filed notice of appeal.

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inmate confined in an institution files a notice of appeal

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. . . the notice of appeal is timely filed if it is deposited

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in the institution's internal mail system on or before the

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last day for filing."); Andrade v. Attorney General, 270 F.3d

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743, 752 (9th Cir. 2001), reversed on other grounds by Lockyer

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v. Andrade, 538 U. S. 63 (2003) (holding court may consider a

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timely motion for extension of time the functional equivalent

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of a notice of appeal).

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See Fed. R. App. Proc. 4(c) ("If an

The Clerk of the Court shall transmit a copy of this Order,

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together with the case file, to the Ninth Circuit.

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This Order terminates Docket no. 20.

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IT IS SO ORDERED.

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Dated: 11/8/2012

______________________________
CLAUDIA WILKEN
UNITED STATES DISTRICT JUDGE

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United States District Court
For the Northern District of California

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