Mabon v. Harvey
Filing
22
ORDER Directing Respondent to Respond. Signed by Judge Ronald M. Whyte on 7/28/11. (jg, COURT STAFF) (Filed on 7/29/2011)
1
2
3
*E-FILED - 7/29/11*
4
5
6
7
8
IN THE UNITED STATES DISTRICT COURT
9
FOR THE NORTHERN DISTRICT OF CALIFORNIA
10
11
TROY DOMINIC MABON, JR.,
12
13
14
15
16
)
)
Petitioner,
)
)
v.
)
)
JOHN W. HARVEY,
)
)
Respondent.
)
__________________________________ )
No. C 09-2817 RMW (PR)
ORDER DIRECTING RESPONDENT TO
RESPOND
17
Petitioner, a state prisoner proceeding pro se, filed a petition for writ of habeas corpus
18
pursuant to 28 U.S.C. § 2254. Respondent filed a motion to dismiss the petition as untimely.
19
Petitioner filed an opposition. On January 27, 2011, the court granted respondent’s motion to
20
dismiss and entered judgment.
21
On June 26, 2011, petitioner sent a letter to the court inquiring into the status of his case.
22
Based on petitioner’s letter, it is apparent that he never received notice of the judgment. The
23
court construes petitioner’s letter as a motion to reopen the time for appeal. Federal Rule of
24
Appellate Procedure 4(a)(6) explicitly sets time limits for filing a motion in the district court to
25
reopen the time to appeal when a party did not receive notice of entry of judgment. That Rule
26
provides that in order to reopen the time to file an appeal, the petitioner must have failed to
27
receive notice of entry of judgment within 21 days after entry of judgment, and the motion must
28
Order Directing Respondent to Respond
P:\PRO-SE\SJ.Rmw\HC.09\Mabon817resp.wpd
1
be filed within 180 days after entry of judgment or within 14 days after the moving party
2
receives notice of entry of judgment, whichever is earlier. Fed. R. App. P. 4(a)(6)(A), (B).
3
Both provisions are satisfied here. The Rule also requires that before the court may grant a
4
motion to reopen the time to file an appeal, it must find that no party would be prejudiced by it.
5
Fed. R. App. P. 4(a)(6)(C).
6
Accordingly, before the court rules on the motion to reopen the time to file an appeal,
7
respondent is directed to file a response within twenty days of the filing date of this order
8
demonstrating how, if at all, he would be prejudiced by the reopening of the time to file an
9
appeal. If petitioner wishes to file an opposition to the response, he shall do so twenty days
10
11
12
thereafter.
IT IS SO ORDERED.
7/28/11
DATED: _______________
RONALD M. WHYTE
United States District Judge
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Order Directing Respondent to Respond
P:\PRO-SE\SJ.Rmw\HC.09\Mabon817resp.wpd
2
UNITED STATES DISTRICT COURT
FOR THE
NORTHERN DISTRICT OF CALIFORNIA
TROY D. MABON,
Case Number: CV09-02817 RMW
Plaintiff,
CERTIFICATE OF SERVICE
v.
JOHN W. HARVEY et al,
Defendant.
/
I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District
Court, Northern District of California.
That on July 29, 2011, I SERVED a true and correct copy(ies) of the attached, by placing said
copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing
said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery
receptacle located in the Clerk's office.
Troy Dominic Mabon V-70737
California State Prison-Solano
Bldg/Bed 12-214L
P.O. Box 4000
Vacaville, CA 95696-4000
Dated: July 29, 2011
Richard W. Wieking, Clerk
By: Jackie Lynn Garcia, Deputy Clerk
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?