Perea v. Imperial County

Filing 54

ORDER granting 46 Petitioner's Motion for Extension of Time Under Fed. R. App. P. 4(a)(5). Signed by Magistrate Judge Ruben B. Brooks on 7/10/2013. (USCA Case Number 12-56578. 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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JAIME TAPIA PEREA,

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Petitioner,
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v.
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RAY LOERA, Sheriff,

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Respondent.
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Civil No. 10cv1565-RBB
ORDER GRANTING PETITIONER'S
MOTION FOR EXTENSION OF TIME
UNDER FED. R. APP. P.
4(a)(5)[ECF NOS. 46, 53]

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Petitioner Jaime Perea, proceeding pro se, filed a Petition
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for Writ of Habeas Corpus challenging his state court conviction
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on July 23, 2010 [ECF No. 1].

A Second Amended Petition for Writ

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of Habeas Corpus under 28 U.S.C. § 2254 alleging claims based on
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actual innocence, prosecutorial misconduct, an involuntary plea,
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and equal protection was filed nunc pro tunc to December 7, 2010
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[ECF No. 9].

On May 17, 2012, after concluding that Petitioner is

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not entitled to relief under 28 U.S.C. § 2254 on any of his
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claims, the Court denied Perea’s Second Amended Petition, and
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declined to issue a certificate of appealability [ECF No. 40].

On

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10cv1565-RBB

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the same day, the Clerk of Court entered judgment in this case and

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closed the case file [ECF No. 41].
While the case was closed, Petitioner submitted a Motion for

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Extension of Time,1 which was filed nunc pro tunc to June 12, 2012

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[ECF No. 46].

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of time to file (1) a motion for reconsideration of the Court’s

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ruling and (2) a request for a certificate of appealability.

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(Mot. Extension Time 3, ECF No. 46.)

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support of both requests.

In his Motion, Perea sought a thirty-day extension

He urged the same grounds in

(Id. at 4.)

On June 21, 2012, the

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Court granted Petitioner a thirty-day extension of time to file a

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motion for reconsideration but did not explicitly address an

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extension of time to request a certificate of appealability.

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(Order Granting Pet'r's Mot. Extension Time 3, ECF No. 47.)

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On August 27, 2012, Perea filed a Motion to Reconsider and/or

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(COA) Certificate of Appeal, which was docketed as a Notice of

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Appeal [ECF No. 49].

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the case "for the limited purpose of allowing that court to rule

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on appellant's motion under Federal Rule of Appellate Procedure

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4(a)(5)."

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Rules of Appellate Procedure provides that "[t]he district court

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may extend the time to file a notice of appeal if: (i) a party so

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moves no later than 30 days after the time prescribed by this Rule

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4(a) expires; and (ii) . . . that party shows excusable neglect or

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good cause."

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indicated that the motion to extend is timely.

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53.)

On July 10, 2013, the Ninth Circuit remanded

(Order 2, ECF No. 53.)

Rule 4(a)(5) of the Federal

Fed. R. App. P. 4(a)(5).

The Ninth Circuit has
(Order 2, ECF No.

Consequently, this Court need only determine whether

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Because Perea’s Motion for Extension is not consecutively
paginated, the Court will cite to it using the page numbers assigned
by the electronic filing system.
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10cv1565-RBB

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excusable neglect or good cause to grant an extension of time has

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been established.

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The grounds Perea urged in support of an extension of time to

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file a motion for reconsideration also support an extension of

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time to file a request for a certificate of appealability.

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Extension Time 4, ECF No. 46.)

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that Perea had established good cause for granting an extension of

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time to file a motion for reconsideration.

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establish good cause to grant Perea a thirty-day extension of time

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to file a notice of appeal.

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(Mot.

The Court previously concluded

The same grounds

[ECF Nos. 46, 53].

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Accordingly, the Motion is GRANTED

IT IS SO ORDERED.

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DATE: July 10, 2013

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__________________________________
RUBEN B. BROOKS
United States Magistrate Judge

cc:
All Parties of Record

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