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)

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*E-FILED - 7/29/11*

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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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TROY DOMINIC MABON, JR.,
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Petitioner,
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v.
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JOHN W. HARVEY,
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Respondent.
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__________________________________ )

No. C 09-2817 RMW (PR)
ORDER DIRECTING RESPONDENT TO
RESPOND

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Petitioner, a state prisoner proceeding pro se, filed a petition for writ of habeas corpus
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pursuant to 28 U.S.C. § 2254. Respondent filed a motion to dismiss the petition as untimely.
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Petitioner filed an opposition. On January 27, 2011, the court granted respondent’s motion to
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dismiss and entered judgment.
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On June 26, 2011, petitioner sent a letter to the court inquiring into the status of his case.
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Based on petitioner’s letter, it is apparent that he never received notice of the judgment. The
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court construes petitioner’s letter as a motion to reopen the time for appeal. Federal Rule of
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Appellate Procedure 4(a)(6) explicitly sets time limits for filing a motion in the district court to
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reopen the time to appeal when a party did not receive notice of entry of judgment. That Rule
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provides that in order to reopen the time to file an appeal, the petitioner must have failed to
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receive notice of entry of judgment within 21 days after entry of judgment, and the motion must
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Order Directing Respondent to Respond
P:\PRO-SE\SJ.Rmw\HC.09\Mabon817resp.wpd

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be filed within 180 days after entry of judgment or within 14 days after the moving party

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receives notice of entry of judgment, whichever is earlier. Fed. R. App. P. 4(a)(6)(A), (B).

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Both provisions are satisfied here. The Rule also requires that before the court may grant a

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motion to reopen the time to file an appeal, it must find that no party would be prejudiced by it.

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Fed. R. App. P. 4(a)(6)(C).

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Accordingly, before the court rules on the motion to reopen the time to file an appeal,

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respondent is directed to file a response within twenty days of the filing date of this order

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demonstrating how, if at all, he would be prejudiced by the reopening of the time to file an

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appeal. If petitioner wishes to file an opposition to the response, he shall do so twenty days

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thereafter.
IT IS SO ORDERED.
7/28/11
DATED: _______________
RONALD M. WHYTE
United States District Judge

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Order Directing Respondent to Respond
P:\PRO-SE\SJ.Rmw\HC.09\Mabon817resp.wpd

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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