Espinoza v. Montgomery

Filing 26

ORDER DIRECTING FILING OF NOTICE OF APPEAL; AND DENYING AS MOOT PETITIONER'S REQUEST FOR EXTENSION OF TIME TO FILE CERTIFICATE OF APPEALABILITY by Judge Yvonne Gonzalez Rogers; denying 24 Motion for Extension of Time to File. (Attachments: # 1 Certificate/Proof of Service)(fs, COURT STAFF) (Filed on 9/24/2018)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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CARLOS A. ESPINOZA,
Petitioner,

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v.

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W. L. MONTGOMERY, Warden,

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ORDER DIRECTING FILING OF
NOTICE OF APPEAL; AND DENYING
AS MOOT PETITIONER’S REQUEST
FOR EXTENSION OF TIME TO FILE
CERTIFICATE OF APPEALABILITY

Respondent.

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Case No. 17-cv-02159-YGR (PR)

Petitioner, a state prisoner, filed a pro se petition for a writ of habeas corpus pursuant to 28
U.S.C. § 2254. On July 24, 2018, the Court entered an order and judgment denying the petition on

United States District Court
Northern District of California

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the merits. Dkts. 22, 23. Thereafter, on August 23, 2018,1 Petitioner filed a document entitled,

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“Application for Extension of Time to File Petitioner[’]s COA,” in which he requests an extension

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of time to file a certificate of appealability (“COA”).

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As a preliminary matter, Petitioner seeks additional time to file a COA, but has not filed a
separate notice of appeal. However, any document that clearly evinces an intent to appeal and is
otherwise sufficient under Federal Rule of Appellate Procedure 3(c) may be construed as the
functional equivalent of a notice of appeal. See Smith v. Barry, 502 U.S. 244, 245 (1992).
Petitioner’s aforementioned motion evinces an intent to appeal and is otherwise sufficient to be
considered a notice of appeal. See Smith, 502 U.S. at 248; Fed. R. App. P. 3(c); cf. Tinsley v.
Borg, 895 F.2d 520, 523 (9th Cir. 1990) (treating timely pro se motion for a certificate of probable
cause as a timely notice of appeal), cert. denied, 498 U.S. 1091 (1991). Therefore, the Court
construes Petitioner’s pending motion as a notice of appeal. The Court further notes that an appeal
of right may be taken only by filing a valid notice of appeal in the district court within the time

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Petitioner’s motion has a signature date of August 23, 2018 and was stamped “filed” at
the Court on August 27, 2018. As a pro se prisoner, Petitioner receives the benefit of the prisoner
mailbox rule, which deems most documents filed when the prisoner gives them to prison officials
to mail to the court. See Stillman v. LaMarque, 319 F.3d 1199, 1201 (9th Cir. 2003). The Court
will assume he gave the motion to prison officials for mailing on the date he signed it, i.e., August
23, 2018, and deem the motion filed as of that date.
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allowed by Fed. R. App. P. (“FRAP”) 4. See FRAP 3(a)(1). The notice of appeal must be filed

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within thirty days after judgment is entered. See FRAP 4(a)(1). Under these rules, a notice of

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appeal be filed in this action within thirty days of July 24, 2018 (the day judgment was entered),

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that is, on or before August 23, 2018.

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Here, Petitioner’s motion was signed on August 23, 2018, which is exactly on the deadline

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and is therefore timely under FRAP 4(a)(1). Therefore, the Clerk of the Court is directed to file

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Docket No. 24 as a notice of appeal, with a filing date of August 23, 2018.

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Finally, as mentioned above, Petitioner requests an extension to file a COA. Federal Rule
of Civil Procedure 6(b) allows the district court to extend the time for taking any action that is
required to be done within a specified time under the Federal Rules or a court order. There is no

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United States District Court
Northern District of California

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time limit for requesting a COA. See 28 U.S.C. § 2253(c). In any event, in its July 24, 2018

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Order, the Court declined to issue a COA as to Petitioner’s claims. Dkt. 22 at 30. Therefore, there

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is no need for Petitioner to file a COA in this Court, a fact which renders moot his request for an

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extension of time to do so. Accordingly, Petitioner’s request for an extension of time to file a

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COA is DENIED as moot.
CONCLUSION

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For the reasons outlined above, the Court orders as follows:

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1.

Petitioner’s “Application for Extension of Time to File Petitioner[’]s COA” is

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construed as a notice of appeal. The Clerk is directed to file Docket No. 24 as a notice of appeal,

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with a filing date of August 23, 2018.

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2.

Petitioner’s request for an extension of time to file a COA is DENIED as moot.

Dkt. 24.

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3.

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IT IS SO ORDERED.

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This Order terminates Docket No. 24.

Dated: September 24, 2018

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YVONNE GONZALEZ ROGERS
United States District Judge

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