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Allen v. Scribner

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


August 21, 2008

JAMES D. ALLEN, PETITIONER,
v.
L.E. SCRIBNER, WARDEN, ET AL., RESPONDENT.

The opinion of the court was delivered by: Marilyn L. Huff, District Judge United States District Court

ORDER: (1) DENYING AS MOOT MOTION FOR ADDITIONAL TIME TO FILE NOTICE OF APPEAL; AND (2) DENYING MOTION FOR A CERTIFICATE OF APPEALABILITY

On July 16, 2008, the Court dismissed the petition because it presented a mix of exhausted and unexhausted claims, and Petitioner was unwilling to abandon the unexhausted claims. (Doc. No. 28.) The order was entered on July 17, 2008. (Id.) On August 19, 2008, the Court received Petitioner's notice of appeal along with two motions: (1) a motion for an extension of time to file his notice of appeal; and (2) a motion for a certificate of appealability. (Doc. Nos. 30-32.)

Discussion

I. Extension of Time

The Court concludes that Petitioner's notice of appeal is timely, so the request for an extension of time is moot. Generally, the notice of appeal in a civil case is due 30 days after a court enters the judgment or order appealed from. Fed. R. App. P. 4(a)(1)(A). For an inmate confined in an institution, "the notice is timely if it is deposited in the institution's mail system on or before the last day for filing." Fed. R. App. P. 4(c)(1). The Court entered its order on July 17, 2008, and Petitioner filed a verification that he placed his notice of appeal in the prison mail system on August 16, 2008. Under Fed. R. App. P. 4(c)(1), therefore, he filed the notice within 30 days. There is no need to extend time, and the Court denies Petitioner's motion for additional time as moot.

II. Certificate of Appealability

A certificate of appealability requires "a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). The Court concludes that Petitioner does not meet this standard and denies the request for a certificate of appealability.

Conclusion

The Court concludes that the notice of appeal is timely and denies the motion for additional time as moot. The Court denies the request for a certificate of appealability.

IT IS SO ORDERED.

20080821

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