Muniz v. Department of Health and Human Services, Washington, D.C.

Filing 136

USCA ORDER as to Edward Muniz. The petition for a writ of mandamus is denied. USCA case no. 09-1547. (bjr, )

Case: 09-1547

Document: 01018363272

Date Filed: 02/08/2010 FILED 1 Page: U n i t ed States Court of Appeals T e n t h Circuit

U N I T E D STATES CO U R T O F APPEALS E l i s a b e t h A. Shumaker F O R TH E TENTH CIRCUIT C l e r k of Court

F e b r u a r y 8, 2010

I n re: EDW A R D M U N I Z , P etitio n er.

N o . 09-1547 ( D . C . No. 1:07-CV-01914-M S K - M J W ) ( D . Colo.)

ORDER

B e f o r e TA C H A , BR I S C O E , and M U R P H Y , Circuit Judges.

E d w a r d M u n i z has filed a petition for a w r i t of mandamus asking this court t o direct the district court to rule on his pending motion to alter the judgment, and h i s pending motion for extension of time to file an appeal. M r . M u n i z asserts in h i s petition that "[i]n order to continue with my appeal these motions need to be a n s w e r e d . " Pet. at 1. Shortly before M r . M u n i z filed his mandamus petition, he filed his notice o f appeal. O n December 14, 2009, we dismissed M r . M u n i z ' s appeal as untimely. In the dismissal order, we noted that judgment was entered on August 14, 2009, a n d the notice of appeal was due on or before September 14, 2009. M r . M u n i z d i d not file his notice of appeal until December 4, 2009. Although he did file a m o t i o n to alter the judgment, that motion was untimely and therefore it did not t o l l the time for filing a notice of appeal. M r . M u n i z also filed a motion for

Case: 09-1547

Document: 01018363272

Date Filed: 02/08/2010

Page: 2

e x t e n s i o n of time to file his notice of appeal, but that motion was untimely b e c a u s e it was not filed within the thirty-day time period for filing a notice of a p p e a l . Because M r . M u n i z did not timely file his notice of appeal and there was n o basis to toll the time period for filing his appeal, we dismissed the appeal. W e n o t e d , however, that if and when the district court ruled on his pending p o s t - j u d g m e n t motion, he could appeal from that ruling, if he wished to do so. O n February 4, 2010, the district court denied as moot M r . M u n i z ' s motion f o r an extension of time to file an appeal. Although the district court has not r u l e d on his motion to alter the judgment, M r . M u n i z can no longer argue that he n e e d s the district court to rule on that motion in order to continue with his appeal b e c a u s e his appeal has been dismissed. M r . M u n i z is still free to file an appeal f r o m the district court's disposition of his post-judgment motion, once the court r u l e s on that motion. Accordingly, we D E N Y as moot M r . M u n i z ' s petition for a w r i t of mandamus, and we DENY M r . M u n i z ' s motion to proceed without p r e p a y m e n t of fees. M r . M u n i z is directed to pay the filing fee immediately.

Entered for the Court,

E L I S A B E T H A. SHUM A K E R , Clerk

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Case: 09-1547

Document: 01018363273

Date Filed: 02/08/2010

Page: 1

UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT OFFICE OF THE CLERK
Byron White United States Courthouse 1823 Stout Street Denver, Colorado 80257 [phone] Elisabeth A. Shumaker Clerk of Court

February 08, 2010

Douglas E. Cressler Chief Deputy Clerk

Edward Muniz AVCF - Arkansas Valley Correctional Facility P.O. Box 1000 Crowley, CO 81034 #120296 RE: 09-1547, In re: Muniz Dist/Ag docket: 1:07-CV-01914-MSK-MJW

Dear Mr. Muniz: Enclosed please find an order issued today by the court. Please contact this office if you have questions. Sincerely,

Elisabeth A. Shumaker Clerk of the Court

cc:

Chris Alber

EAS/jm