Fernandez v. Cox et al
ORDER. IT IS THEREFORE ORDERED that 55 petitioner's motion for extension of time is GRANTED in part. Petitioner will have through Friday, 5/5/17, to file a notice of appeal from the final judgment.) Signed by Chief Judge Gloria M. Navarro on 4/4/17. (Copies have been distributed pursuant to the NEF - ADR)
UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA
RENE F. FERNANDEZ,
JAMES GREG COX, et al.,
Case No. 2:13-cv-02158-GMN-VCF
The court has denied the amended petition for a writ of habeas corpus. The court entered
judgment on March 7, 2017. Petitioner has filed a motion for extension of time to file a motion
pursuant to Rule 60(b) of the Federal Rules of Civil Procedure (ECF No. 55). The time to file a
Rule 60 motion is one year from entry of judgment. Petitioner does not need extra time to file that
The court assumes that petitioner wants to file a Rule 60 motion and then to appeal the final
judgment of this action after disposition of the Rule 60 motion. Normally, a notice of appeal must
be filed within 30 days after entry of judgment. Fed. R. App. P. 4(a)(1)(A). However, the 30-day
time to appeal this court’s judgment starts to run from the entry of an order disposing of a Rule 60
motion, if that motion is filed no later than 28 days after entry of judgment. Fed. R. App. P.
4(a)(4)(A). The court may extend the time to file a notice of appeal if petitioner files a motion for
extension of time within 30 days after expiration of the time to appeal. Fed. R. App. P.
4(a)(5)(A)(i). Appellate Rule 4 does not provide for an extension of the 28-day time to file a Civil
Rule 60 motion that would then toll the time to file a notice of appeal. “[T]he timely filing of a
notice of appeal in a civil case is a jurisdictional requirement[,]” and “this [c]ourt has no authority to
create equitable exceptions. . . .” Bowles v. Russell, 551 U.S. 205, 214 (2007). The court cannot
combine the tolling provision of Rule 4(a)(4)(A) and the extension of Rule 4(a)(5)(A)(i). If this
court granted petitioner an extension when the rule does not specifically allow an exception, then
the court likely would block petitioner from any appellate review of the denial of his amended
habeas corpus petition.
The court will grant petitioner an extension of time to file a notice of appeal. Petitioner
needs to understand that if he files a Rule 60 motion, he likely will be unable to appeal the denial of
the amended petition. Also, petitioner should determine whether a Rule 60 motion is what he wants
to pursue. “Rule 60(b) cannot be used as a substitute for an appeal.” McCarthy v. Mayo, 827 F.2d
1310, 1318 (9th Cir. 1987). “‘[T]he major grounds that justify reconsideration involve an
intervening change of controlling law, the availability of new evidence, or the need to correct a clear
error or prevent manifest injustice.’” Pyramid Lake Paiute Tribe of Indians v. Hodel, 882 F.2d 364,
369 n.5 (9th Cir. 1989) (citation omitted).
IT IS THEREFORE ORDERED that petitioner’s motion for extension of time (ECF No. 55)
is GRANTED in part. Petitioner will have through Friday, May 5, 2017, to file a notice of appeal
from the final judgment.
DATED: April 4, 2017
Gloria M. Navarro, Chief Judge
United States District Court
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