THERIAULT v. STATE OF MAINE

Filing 29

ORDER dismissing without prejudice 26 Objection to Order on Motion to Continue. By JUDGE JOHN A. WOODCOCK, JR. (MFS)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
MARK J. THERIAULT,
Petitioner,
v.
STATE OF MAINE,
Respondent.

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1:16-cv-00576-JAW

ORDER ON PETITIONER’S OBJECTION
TO ORDER ON MOTION TO CONTINUE
On November 21, 2016, Mark J. Theriault filed a petition for writ of habeas
corpus against the state of Maine pursuant to 28 U.S.C. § 2254. Pet. Under 28 U.S.C.
§ 2254 for Writ of Habeas Corpus by a Person in State Custody (ECF No. 1). On May
19, 2017, the Magistrate Judge issued a recommended decision, recommending that
the Court deny the petition. Recommended Decision on 28 U.S.C. § 2254 Pet. (ECF
No. 9). On June 2, 2017, Mr. Theriault objected to the recommended decision. Obj.
to Recommended Decision on 28 U.S.C. § 2254 (ECF No. 10). On August 31, 2017,
the Court affirmed the recommended decision over Mr. Theriault’s objection. Order
Affirming the Recommended Decision of the Magistrate Judge (ECF No. 11). The
Court ordered that if Mr. Theriault sought a certificate of appealability, his request
be denied. Id. at 27.
On September 8, 2017, Mr. Theriault filed what the Clerk’s Office concluded
was a notice of appeal. Notice of Appeal at 1 (ECF No. 13) (“I am in receipt of the
order denying my Petition for Writ of Habeas Corpus. I wish to appeal to the First

Circuit Court of Appeals in Boston”). Then, on September 14, 2017, Mr. Theriault
filed another document with the Clerk’s Office entitled “Notice of Appeal,” which the
Clerk’s Office docketed as such. Notice of Appeal (ECF No. 17).
On September 14, 2017, Mr. Theriault also filed a motion to continue, asking
that this Court grant him an additional six months to file his appeal with the First
Circuit Court of Appeals. Mot. to Continue (ECF No. 19). On September 19, 2017,
the Magistrate Judge issued an order mooting Mr. Theriault’s request for six months
to file the appeal because he had already filed two appeals and therefore his request
for more time to do what he had already done was moot. Order Mooting Mot. to
Continue (ECF NO. 24). The Magistrate Judge speculated that Mr. Theriault might
be asking for an extension of time to prosecute his appeal at the First Circuit Court
of Appeals, but the Magistrate Judge noted that such a motion had to be directed to
the Court of Appeals, not the District Court. Id.
On September 26, 2017, Mr. Theriault filed a letter directed to the Clerk of
Court. Objection to the Magistrate Judge’s Order (ECF No. 26). In the letter, Mr.
Theriault expresses concern and confusion.

Id. at 1.

Among other things, Mr.

Theriault states:
Did you, or anyone else in your office file a notice of appeal on my behalf
to The First Circuit Court of Appeals? If so, it was done against my
wishes and definitely without my request or instruction to do so.
Id. at 1. He asks for information about the rules for filing his appeal to the First
Circuit Court of Appeals. Id. Finally, he asks for information about the petitions,
forms or documents required to file his appeal to the First Circuit Court of Appeals.

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Id. The Clerk’s Office docketed this filing as an objection to the Magistrate Judge’s
order. Id. Meanwhile, on October 11, 2017, the Court of Appeals for the First Circuit
issued a judgment for its docket number 17-1922:
Upon consideration of appellant’s unopposed motion, it is hereby
ordered that this appeal be voluntarily dismissed pursuant to Fed. R.
App. P. 42(b). Defendant’s appeal shall proceed under No. 17-1901.
J. (ECF No. 27).
In light of this background, the Court dismisses without prejudice Mr.
Theriault’s September 26, 2017 objection to the Magistrate Judge’s order. Despite
Mr. Theriault’s protestation that he never filed a notice of appeal with this Court, he
is simply wrong. He filed two notices of appeal and one of those documents he plainly
denominated “Notice of Appeal.” Furthermore, the Court of Appeals for the First
Circuit states that his appeal is proceeding under Court of Appeals docket number
17-1901. Once he effectively filed the notice of appeal, this Court’s jurisdiction over
his case—except for matters not relevant to this order—has been subsumed by the
Court of Appeals.

If Mr. Theriault seeks relief, such as staying his appeal or

extending time for appellate filings, he must seek permission from the Court of
Appeals for the First Circuit, not this Court.
The Court DISMISSES without prejudice Mark J. Theriault’s Objection to the
Order on Motion to Continue (ECF No. 26).
SO ORDERED.
/s/ John A. Woodcock, Jr.
JOHN A. WOODCOCK, JR.
UNITED STATES DISTRICT JUDGE
Dated this 12th day of October, 2017
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