Delgado v. Hatton

Filing 42

ORDER GRANTING IN PART AND DENYING IN PART 40 REQUEST FOR EXTENSION OF TIME TO FILE NOTICE OF APPEAL AND REQUEST FOR CERTIFICATE OF APPEALABILITY. Signed by Judge Haywood S. Gilliam, Jr. on 12/21/2020. (ndrS, COURT STAFF) (Filed on 12/21/2020)Any non-CM/ECF Participants have been served by First Class Mail to the addresses of record listed on the Notice of Electronic Filing (NEF)

Case 4:17-cv-06614-HSG Document 42 Filed 12/21/20 Page 1 of 2

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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NELSON CARLOS DELGADO,
Petitioner,

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v.

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CRAIG KOENIG,
Respondent.

United States District Court
Northern District of California

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Case No. 17-cv-06614-HSG
ORDER GRANTING IN PART AND
DENYING IN PART REQUEST FOR
EXTENSION OF TIME TO FILE
NOTICE OF APPEAL AND REQUEST
FOR CERTIFICATE OF
APPEALABILITY
Re: Dkt. No. 40

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Petitioner, a pro se prisoner, filed this petition for a writ of habeas corpus pursuant to 28

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U.S.C. § 2254.1 On October 29, 2020, the Court denied the petition for a writ of habeas corpus,

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denied a certificate of appealability, and entered judgment in favor of Respondent. Dkt. Nos. 56,

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57. On December 3, 2020,2 Petitioner requested that the Court grant him a sixty-day extension of

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time to file his request for a certificate of appealability. In support of his request, he states that the

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Court’s order denying the petition for a writ of habeas corpus and a certificate of appealability and

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the related judgment were received by him on November 4, 2020; and access to the law library has

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been almost non-existent because of COVID-related restrictions. Dkt. No. 40.

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Petitioner initially named Shawn Hatton as the respondent in this action. In accordance with
Rule 25(d) of the Federal Rules of Civil Procedure and Rule 2(a) of the Rules Governing Habeas
Corpus Cases Under Section 2254, the Clerk of the Court is directed to substitute Craig Koenig,
the current warden of Correctional Training Facility – Soledad, in place of the previously named
respondent because Warden Koenig is Petitioner’s current custodian.
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Pursuant to the prisoner mailbox rule, because Petitioner is a prisoner proceeding pro se,
Petitioner’s pleadings are deemed filed as of the date submitted to prison authorities for mailing to
the court. See Stillman v. LaMarque, 319 F.3d 1199, 1201 (9th Cir. 2003) (holding that federal or
state habeas petition deemed filed on date submitted to prison authorities for forwarding to court,
rather than on date received by court). The Court presumes that Petitioner’s motion was submitted
for mailing on the day he executed it, December 3, 2020. Dkt. No. 40 at 2.

Case 4:17-cv-06614-HSG Document 42 Filed 12/21/20 Page 2 of 2

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The Court construes this motion as a request for an extension of time to file both his notice

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of appeal and his request for a certificate of appealability. Petitioner has shown good cause for the

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extension of time. Petitioner has also timely requested the extension of time. Fed. R. App. P.

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4(a)(1)(A) (notice of appeal must be filed with district clerk within 30 days after entry of judgment

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or order appealed from); Fed. R. App. P. 4(a)(5)(i) (motion for extension of time to file appeal

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must be filed no later than 30 days after the time prescribed by Rule 4(a) expires). The Court

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therefore GRANTS Petitioner an extension of time to January 4, 2021, to file his notice of appeal

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and request for a certificate of appealability pursuant to Fed. R. App. P. 4(a)(5)(A)(i). The federal

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rules of appellate procedure prohibit the Court from granting any further extensions of time. See
Fed. R. App. P. 4(a)(5)(C) (limiting extensions of time under Rule 4(a)(5) to 30 days after time

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United States District Court
Northern District of California

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prescribed by Rule 4(a) expires or 14 days after the date when the order granting the motion is

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entered, whichever is later).

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This order terminates Dkt. No. 40.

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IT IS SO ORDERED.

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Dated: 12/21/2020
______________________________________
HAYWOOD S. GILLIAM, JR.
United States District Judge

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