Voss v. Neven et al

Filing 39

ORDER that Petitioner's 37 Motion to Approve Certificate of Appealability is GRANTED in part as to Jesse Raymond Voss. The Clerk of the Court shall process Petitioner's appeal, treating the 37 Motion to Approve Certificate of Ap pealability and Accept Appeal in 9th Circuit After 30 Days Period Due to Extreme Communication Difficulties as a timely filed notice of appeal. Signed by Judge Kent J. Dawson on 8/31/2015. (Copies have been distributed pursuant to the NEF - SLD)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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JESSE RAYMOND VOSS,

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Petitioner,

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vs.

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D.W. NEVEN, et al.,

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2:12-cv-00854-KJD-GWF

Respondents.

ORDER

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_________________________________/

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This action is a pro se petition for a writ of habeas corpus by Jesse Raymond Voss. On

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May 28, 2015, the court ruled on the merits of the habeas petition, denied Voss habeas corpus relief,

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and denied Voss a certificate of appealability (ECF No. 35). Judgment was entered that same day, in

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favor of respondents and against Voss (ECF No. 36).

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The time for Voss to file a notice of appeal expired on June 29, 2015, without Voss filing a
notice of appeal, and without any other filing by either party. See Fed. R. App. P. 4(a)(1).
On July 21, 2015, Voss filed, in the Ninth Circuit Court of Appeals, a document entitled

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“Motion to Approve Certificate of Appealability and Accept Appeal in 9th Circuit After 30 Days

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Period Due to Extreme Communication Difficulties” (ECF No. 37). The court of appeals forwarded

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Voss’ motion to this court, and it was filed in the electronic file for this case on July 30, 2015.

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Respondents filed an opposition to Voss’ motion on August 17, 2015 (ECF No. 38).

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Voss’ motion seeks an extension of time to file his notice of appeal, and expresses his

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intention to appeal; the court, therefore, treats the motion as a motion for an extension of time

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pursuant to Federal Rule of Appellate Procedure 4(a)(5), and as a notice of appeal.

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A notice of appeal normally must be filed within thirty days after the entry of judgment. See

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Fed. R. App. P. 4(a)(1). Federal Rule of Appellate Procedure 4(a) is the exclusive avenue for relief

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from the expiration of the period to file a timely notice of appeal. See In re Stein, 197 F.3d 421, 426-

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27 (9th Cir.2000). Rule 4(a)(5) allows for an extension of time to appeal if the party requests it

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within thirty days of the expiration of the time to file the notice, and shows excusable neglect or

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good cause. See Fed. R. App. P. 4(a)(5).

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Voss filed his motion in the court of appeals within thirty days after the entry of judgment

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against him. The court treats the motion for extension of time as timely filed for purposes of Federal

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Rule of Appellate Procedure 4(a)(5).

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In his motion, Voss states that he was arrested on May 17, 2015, and “whereas he was

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release[d] on O.R. was kept in custody to parole violation.” Motion for Extension of Time (ECF

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No. 37), p. 2. He continues: “June 11, 2015, petitioner was transferred from Clark County Detention

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Center to High Desert State Prison intake unit and to the date of this writing has been under 24 hour

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per day lockdown permitted a 10 minute shower every 72 hours.” Id. at 3. He states that, in custody,

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after his May 17 arrest, he has had limited access to mail and telephone facilities. Id. at 2-4. Voss

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states that because of his arrest and custody it was impossible for him to file his notice of appeal

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earlier. Id. at 4.

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The court finds that Voss has made a showing of excusable neglect regarding the late filing

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of his notice of appeal, and good cause to extend the time to file his notice of appeal. The court will

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grant Voss’ motion, in part, and treats his motion as a timely notice of appeal.

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This court does not rule on Voss’ motion for a certificate of appealability, as the court has

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already denied Voss a certificate of appealability. See Order entered May 28, 2015 (ECF No. 35);

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see also Judgment entered May 28, 2015 (ECF No. 36).

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IT IS THEREFORE ORDERED that petitioner’s “Motion to Approve Certificate of

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Appealability and Accept Appeal in 9th Circuit After 30 Days Period Due to Extreme

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Communication Difficulties” (ECF No. 37) is GRANTED, in part. Said motion is granted in that

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the court extends the time for petitioner to file a notice of appeal, and treats said motion, in part, as a

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timely filed notice of appeal.

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IT IS FURTHER ORDERED, therefore, that the Clerk of the Court shall process

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petitioner’s appeal, treating petitioner’s “Motion to Approve Certificate of Appealability and Accept

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Appeal in 9th Circuit After 30 Days Period Due to Extreme Communication Difficulties” (ECF No.

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37) as a timely filed notice of appeal.

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Dated this _____ day of August, 2015.
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UNITED STATES DISTRICT JUDGE
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