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Sessoms v. Runnels

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


December 19, 2008

TIO DINERO SESSOMS, PETITIONER,
v.
D. L. RUNNELS, WARDEN, ET AL., RESPONDENTS.

The opinion of the court was delivered by: John A. Mendez United States District Judge

ORDER

Petitioner is a state prisoner proceeding with counsel on a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. On October 24, 2008, judgment was entered in this court denying the petition. On December 9, 2008, petitioner filed a notice of appeal. Before petitioner can appeal this decision, a certificate of appealability must issue. 28 U.S.C. § 2253(c); Fed. R .App. P. 22(b).

Upon the filing of a notice of appeal by petitioner, under Fed. R. App. P. 22(b)(1), "the district judge who rendered the judgment must either issue a certificate of appealability or state why a certificate should not issue."

The timely filing of a notice of appeal is a jurisdictional requirement. Scott v. Younger, 739 F.2d 1464, 1466 (9th Cir. 1984). Here, the time limit for filing a notice of appeal following entry of judgment is thirty days. See Fed. R. App. P. 4(a). Petitioner's notice of appeal in this action was filed more than thirty days after entry of judgment.

The United States Court of Appeals for the Ninth Circuit has held that the issuance of a certificate of probable cause cannot vest the court of appeals with jurisdiction if jurisdiction is not proper in that court. Hayward v. Britt, 572 F.2d 1324, 1325 (9th Cir. 1978). The rationale of Hayward applies with equal force to a certificate of appealability. For these reasons, the court declines to issue a certificate of appealability.

IT IS SO ORDERED.

20081219

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