Hill v. Virga et al

Filing 23

ORDER GRANTING IN PART MOTION FOR EXTENSION OF TIME TO FILE NOTICE OF APPEAL by Judge Yvonne Gonzalez Rogers granting in part 22 Motion for Extension of Time to File. (Attachments: # 1 Certificate/Proof of Service) (fs, COURT STAFF) (Filed on 4/8/2013)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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DAVID LEE HILL,

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United States District Court
For the Northern District of California

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No. C 11-4793 YGR (PR)

Petitioner,

ORDER GRANTING, IN PART,
MOTION FOR EXTENSION OF TIME
TO FILE NOTICE OF APPEAL

v.
T. VIRGA and K. HARRIS,

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Respondents.
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This is a closed federal habeas corpus action. The petition was denied and judgment
was entered in favor of Respondent on January 28, 2013. Petitioner now moves for an
extension of time to file a notice of appeal (NOA). (Docket No. 22). For the reasons stated
herein, Petitioner's motion is GRANTED, IN PART.
An appeal of right may be taken only by filing a valid NOA in the district court within
the time allowed by Federal Rule of Appellate Procedure 4. See Fed. R. App. P. 3(a)(1).
The NOA must be filed within thirty days after the date judgment is entered. See Fed. R.
App. P. 4(a)(1). Under this rule, Petitioner should have filed his NOA no later than February
27, 2013, which is thirty days after judgment was entered. On March 21, 2013, Petitioner
mailed this motion for a sixty-day extension of time to file his NOA.1
Relief from the deadline for filing an NOA may be obtained by a motion in the district

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The motion was filed by the Court on March 25, 2013. For purposes of this motion, the
Court considers that Petitioner put the motion in the prison mail the day he signed it and will use
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that as the filing date under the prisoner mailbox rule. See Houston v. Lack, 487 U.S. 266, 276
28 (1988).
No. C 11-4793 YGR (PR)

N:\DOCS\Hill793.EOT for NOA.frm

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court under Federal Rule of Appellate Procedure 4(a)(5) (motion for an extension of time) or

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4(a)(6) (motion to reopen time to file appeal). Federal Rule of Appellate Procedure 4(a)(5)

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allows a motion for an extension of time if the party requests it within thirty days of the

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expiration of the time to file the notice and shows excusable neglect or good cause. "No

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extension under this rule 4(a)(5) may exceed 30 days after the prescribed time [that is, 30

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days after the deadline for filing an NOA has passed] or 14 days after the date when the order

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granting the motion is entered, whichever is later." Fed. R. App. P. 4(a)(5)(C).

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Petitioner, then, had until March 29, 2013 to file a motion for an extension of time to
file his NOA. Therefore, his motion filed on March 21, 2013 is timely. The Court finds that

United States District Court
For the Northern District of California

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Petitioner has shown good cause for the delay. However, Federal Rule of Appellate

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Procedure 4(a)(5) does not allow an extension of sixty days, as Petitioner requests. Under

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the circumstances here, Rule 4(a)(5) allows an extension of fourteen days from the filing date

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of this order. Therefore, Petitioner is granted leave to file his NOA within fourteen days

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from the date of this Order.
CONCLUSION

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For good cause shown, Petitioner's motion for an extension of time to file a notice of

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appeal is GRANTED, IN PART. Petitioner has fourteen days from the date of this Order to

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file his notice of appeal. The Clerk shall send a copy of this Order to the Ninth Circuit Court

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of Appeals.

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IT IS SO ORDERED.

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DATED: April 8, 2013
YVONNE GONZALEZ ROGERS
UNITED STATES DISTRICT COURT JUDGE

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No. C 11-4793 YGR (PR)

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N:\DOCS\Hill793.EOT for NOA.frm