Jones v. Davey

Filing 16

ORDER by Judge Haywood S. Gilliam, Jr. GRANTING 15 EXTENSION OF TIME TO FILE NOTICE OF APPEAL. (Attachments: # 1 Certificate/Proof of Service)(ndrS, COURT STAFF) (Filed on 9/15/2017)

1
2
3
4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6
7

DAMON L. JONES,
Petitioner,

8
9

ORDER GRANTING EXTENSION OF
TIME TO FILE NOTICE OF APPEAL

v.

10

DAVE DAVEY,

Re: Dkt. No. 15
Respondent.

11
United States District Court
Northern District of California

Case No. 16-cv-05239-HSG

12
Petitioner, a state prisoner incarcerated at Corcoran State Prison filed this pro se action for

13
14

a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Dkt. No. 1. On August 8, 2017, the Court

15

dismissed this petition as untimely, denied a certificate of appealability, and entered judgment in

16

favor of Respondent. Dkt. Nos. 13 and 14. Now pending before the Court is Petitioner’s request

17

for an extension of time to file his notice of appeal. Dkt. No. 15.
DISCUSSION

18
19

A.

STANDARD
An appeal “from a district court to a court of appeals may be taken only by filing a notice

20
21

of appeal with the district clerk.” Fed. R. App. P. 3(a)(1). The notice of appeal “must be filed

22

with the district clerk within 30 days after the judgment or order appealed from is entered.” Fed.

23

R. App. P. 4(a)(1)(A). Rule 4(a)(5) of the Federal Rules of Appellate Procedure1 allows a district

24

court to extend the time to file a notice of appeal if a party moves for an extension of time no later

25

than thirty days after the time prescribed by Rule 4(a) expires; and if that party shows excusable

26

neglect or good cause. Fed. R. App. P. 4(a)(5).

27
28

1

All further references to procedural rules are to the Federal Rules of Appellate Procedure.

1

B.

ANALYSIS

2

Petitioner timely filed his request for an extension of time to file his notice of appeal. The

3

district court entered judgment denying the instant petition for writ of habeas corpus on August 8,

4

2017. The thirtieth and final day for Petitioner to file a timely notice of appeal fell on September

5

7, 2017. See Fed. R. App. P. 26(a)(1). Petitioner placed the notice of appeal, addressed to the

6

district court, in a mailbox on September 7, 2017. Dkt. No. 15 at 3.

7

Petitioner has not demonstrated good cause. Petitioner states that he has been unable to
access the law library because the prison has been on a modified lockdown program which

9

restricts inmates both from accessing the law library and from movement. Dkt. No. 15 at 2.

10

However, Petitioner’s claim of denial of access to the law library is contradicted by the daily

11
United States District Court
Northern District of California

8

program status which initiated the modified lockdown program. Id. at 4. The modified lockdown

12

program was initiated on August 19, 2017, but it allows Priority Legal Users (“PLUs”) access to

13

the law library. Id. An inmate with an established court or statutory deadline, such as Petitioner,

14

is eligible for PLU status. 15 Cal. Code Regs. § 3122(b). Because the record before the Court

15

does not support Petitioner’s claim that the prison prevented him from accessing the law library,

16

the Court finds that Petitioner has not demonstrated good cause.

17

Nonetheless, the Court finds that Petitioner has demonstrated excusable neglect. The

18

United States Supreme Court, in the context of a dispute about a bankruptcy rule, has said that

19

“neglect” encompasses faultless omissions and omissions caused by carelessness, and that the

20

determination whether neglect was “excusable” is an equitable one, taking account of all relevant

21

circumstances surrounding a party’s omission. Pioneer Inv. Serv. Co. v. Brunswick Assoc. Ltd.

22

P’ship, 507 U.S. 380, 388, 392, 395 (1993) (addressing phrase “excusable neglect” in Rule 6(b) of

23

the Federal Rules of Civil Procedure). In evaluating whether neglect is excusable under Rule

24

4(a)(5), a district court must consider the four factors established by the United States Supreme

25

Court in Pioneer: “(1) the danger of prejudice to the non-moving party, (2) the length of delay and

26

its potential impact on judicial proceedings, (3) the reason for the delay, including whether it was

27

within the reasonable control of the movant, and (4) whether the moving party’s conduct was in

28

good faith.” Pincay v. Andrews, 389 F.3d 853, 855 (9th Cir. 2004) (citing Pioneer, 507 U.S. at
2

1

395). The weighing of Pioneer’s equitable factors is left to the discretion of the district court “in

2

every case.” Id. at 860. The first two factors weigh in favor of granting the extension of time.

3

The extension of time sought poses no danger of prejudice to Respondent; and the delay is

4

minimal and would have little impact on judicial proceedings. The third factor weighs against

5

granting the extension of time. The reason for the delay is unclear because Petitioner’s proffered

6

reason is not supported by the record. The fourth factor is inconclusive. The Court bears in mind

7

that Petitioner is a pro se inmate, and the record does not clearly indicate bad faith.

8

Because this is an equitable determination, the Court finds excusable neglect and grants an
extension of time for the following reason. The Ninth Circuit has held that a petitioner’s timely

10

motion for an extension of time to file an appeal is the functional equivalent of a notice of appeal

11
United States District Court
Northern District of California

9

where the motion is filed within the time specified by Rule 4 and gives the notice required by Rule

12

3. See Estrada v. Scribner, 512 F.3d 1227, 1236 (9th Cir. 2008) (noting that a document is the

13

functional equivalent of a notice of appeal if filed within time specified by Fed. R. App. P. 4 and

14

gives notice required by Fed. R. App. P. 3, and that more lenient standard is used with pro se

15

litigants); Andrade v. Attorney General of Cal., 270 F.3d 743, 752 (9th Cir.2001), rev’d on other

16

grounds, 538 U.S. 63 (2003) (holding that pro se prisoner’s timely motion for extension to file

17

appeal was functional equivalent of notice of appeal). Petitioner’s motion for an extension of time

18

was filed within the time specified by Rule 4. Petitioner’s motion also gave the notice required by

19

Rule 3 in that Petitioner identified the party seeking to take the appeal (i.e. himself); referenced the

20

judgment which he sought to appeal (Order Granting Respondent’s Motion to Dismiss); and

21

referenced the district court’s denial of a certificate of appealability. Petitioner's failure to specify

22

the “Ninth Circuit Court of Appeals” in his motion does not bar his appeal here because it is clear

23

that he is seeking to appeal to the Ninth Circuit. Estrada, 512 F.3d at 1236 (finding that while

24

petitioner did not specify Ninth Circuit Court of Appeals in motion for extension of time, motion

25

satisfied Rule 3’s notice requirement because he identified himself as the party seeking appeal and

26

referenced judgment being appealed). Keeping in mind that Petitioner is a pro se litigant and that

27

the Ninth Circuit recognizes Petitioner’s timely motion for an extension of time to file his appeal

28

as the functional equivalent of a notice of appeal, the Court finds that the Pioneer’s equitable
3

1

factors, as applied in this particular instance, weigh in favor of granting the extension of time.
CONCLUSION

2
3
4

For the foregoing reasons, the Court GRANTS Petitioner’s motion for an extension of
time. Petitioner shall file his notice of appeal by October 2, 2017.

5

This order terminates Docket No. 15.

6

IT IS SO ORDERED.

7
8
9

Dated: 9/15/2017
______________________________________
HAYWOOD S. GILLIAM, JR.
United States District Judge

10

United States District Court
Northern District of California

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
4