Cortez v. Clark

Filing 37

ORDER granting Request for Extension of Time (Doc. No. 32 ); denying Request for Certificate of Appealability (Doc. Nos. 33 , 34 ); denying Petitioner's Motion for IFP as moot (Doc. No. 35 ). Signed by Magistrate Judge William McCurine, Jr., on 5/13/2011. (Order electronically transmitted to US Court of Appeals. All non-registered users served via U.S. Mail Service.) (akr)

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UNITED STATES DISTRICT COURT
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SOUTHERN DISTRICT OF CALIFORNIA
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ADRIAN N. CORTEZ,

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Petitioner,
v.

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KEN CLARK, WARDEN,
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Respondent,
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Civil No. 10cv147 WMc
ORDER: (1) GRANTING REQUEST
FOR EXTENSION OF TIME [DOC. NO.
32]; (2) DENYING REQUEST FOR
CERTIFICATE OF APPEALABILITY
[DOC. NOS. 33, 34]; AND (3)DENYING
PETITIONER’S MOTION FOR IFP AS
MOOT [DOC. NO. 35.]

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A. Petitioner’s Motion for Extension of Time to File Appeal
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On March 14, 2011, this Court denied the Petition for writ of Habeas Corpus in the above19
entitled case. [Doc. No. 31.] On April 13, 2011, Petitioner filed a Motion for an Extension of Time to
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file a Notice of Appeal. [Doc. No.32.] Under Rule 4(a)(1)(A) of the Federal Rules of Appellate
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Procedure, “[i]n a civil case, except as provided in Rules 4(a)(1)(B), 4(a)(4), and 4(c), the notice of
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appeal required by Rule 3 must be filed with the district clerk within 30 days after the judgment or order
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appealed from is entered.”). The U.S. Supreme Court has made it “clear that the timely filing of a notice
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of appeal in a civil case is a jurisdictional requirement.” Bowles v. Russell, 127 S.Ct. 2360, 2366
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(2007). A district court, however, has “limited authority to grant an extension of the 30-day time
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period” upon showing of excusable neglect or good cause. Id.; see also Fed. R. App. Rule 4(a)(5)
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(providing “the district court may extend the time to file a notice of appeal if: (i) a party so moves no
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later than 30 days after the time prescribed by this Rule 4(a) expires; and (ii) regardless of whether its
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motion is filed before or during the 30 days after the time prescribed by this Rule 4(a) expires, that party

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shows excusable neglect or good cause.”) Accordingly, the court may “be permitted where appropriate,

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to accept late filings caused by inadvertence, mistake, or carelessness, as well as by intervening

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circumstances beyond the party’s control.” Pioneer Inv. Serv’s Co. v. Brunswick Assoc’s, 507 U.S. 380,

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388 (1993). This is an “equitable” determination, and the court must consider “all relevant circum-

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stances surrounding the party’s omission.” Id. at 395.

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Here, Plaintiff claims he failed to file a timely notice of appeal due to a prison lockdown which

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affects his ability to conduct legal research . [Doc. No. 32.] The Court finds the ability to access the

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prison law library to prepare legal work under lockdown conditions is an intervening circumstance

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outside of the Petitioner’s control. In the interest of justice and in light of the fact Petitioner’s motion

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for extension is timely and unopposed, this Court finds good cause exists to GRANT Petitioner’s

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motion for an extension of time to appeal.

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Pursuant to Rule 4(a)(5)(c), upon granting an extension, the Court must give Petitioner a thirty-

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day extension from his original deadline or fourteen days from the date of an order granting an

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extension, whichever is later. See Fed. R.App. P. Rule 4(a)(5)(c). Accordingly, the Court extends the

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time for Petitioner to file a notice of appeal to fourteen days from the date of this Order.

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B. Petitioner’s Request for Certificate of Appealability

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On March 14, 2011, this Court issued an order denying the Petition for Writ of Habeas Corpus in

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the above-entitled case. [Doc. No. 31.] On May 6, 2011, Petitioner filed a motion for Certificate of

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Appealability. [Doc. No. 33.] A petitioner complaining of detention arising from state court proceed-

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ings must obtain a certificate of appealability (“COA”) to file an appeal of the final order in a federal

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habeas proceeding. 28 U.S.C. § 2253(c)(1)(A). The court may issue a COA only if the petitioner “has

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made a substantial showing of the denial of a constitutional right.” Id. § 2253(c)(2). To make a

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“substantial showing,” the petitioner must demonstrate that reasonable jurists would find the district

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court’s assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473,

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484 (2000). In the present case, the Court finds Petitioner has not made a substantial showing of the

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denial of his constitutional rights and reasonable jurists would agree with this Court’s resolution of

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Petitioner’s constitutional claims. Accordingly, the Court DENIES a certificate of appealability.
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10cv147 WMc

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C. Motion for Leave to Appeal In Forma Pauperis

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On May 6, 2011, Petitioner filed a motion to proceed in forma pauperis (“IFP”) on appeal. [Doc.

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No. 35.] On April 1, 2010, Petitioner was granted IFP status by the Honorable Thomas J. Whelan. [Doc.

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No. 8.] Under 28 U.S.C. § 1915(b)(4), “in no event shall a prisoner be prohibited from bringing a civil

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action or appealing a civil action or criminal judgment for the reason that the prisoner has no assets and

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no means by which to pay the initial partial filing fee.” 28 U.S.C. § 1915(b)(4) (emphasis added). Thus,

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IFP status typically carries forward throughout an appeal in the Ninth Circuit. Accordingly, the Court

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DENIES Petitioner’s Motion for IFP as Moot. As explained above, Petitioner was previously granted

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and presently retains his IFP status which will continue for purposes of appeal.

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IT IS SO ORDERED.
DATED: May 13 , 2011

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Hon. William McCurine, Jr.
U.S. Magistrate Judge
United States District Court

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10cv147 WMc