IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
February 26, 2009
TODD ANTHONY ANDRADE, PETITIONER,
JAMES YATES, RESPONDENT.
The opinion of the court was delivered by: Arthur L. Alarcón United States Circuit Judge Sitting by Designation
On January 6, 2009, this Court ordered that Petitioner Todd Anthony Andrade's ("Petitioner") application for habeas corpus relief be denied. The Clerk of Court also entered judgment on January 6, 2009.
Pending before this Court is Petitioner's motion for an extension of time to file a notice of appeal. (Doc. 38). Petitioner filed this motion on February 25, 2009.
Rule 4(a)(1)(A) of the Federal Rules of Appellate Procedure provide that a party must file a notice of appeal "with the district clerk within 30 days after the judgment or order appealed from is entered." Rule 4(a)5, however, provides in relevant part:
(A) The district court may extend the time to file a notice of appeal if:
(i) a party so moves no later than 30 days after the time prescribed by this Rule 4(a) expires; and
(ii) regardless of whether its motion is filed before or during the 30 days after the time prescribed by this Rule 4(a) expires, that party shows excusable neglect or good cause.
(B) A motion filed before the expiration of the time prescribed in Rule 4(a)(1) or (3) may be ex parte unless the court requires otherwise. If the motion is filed after the expiration of the prescribed time, notice must be given to the other parties in accordance with local rules.
Because Petitioner filed his motion beyond the prescribed thirty-day period prescribed by Rule 4(a)(1)(A), notice of this motion must be given to Respondent. Fed. R. App. P. 4(a)(5)(B).
Accordingly, IT IS HEREBY ORDERED that Respondent file a response to Petitioner's motion for an extension of time to file a notice of appeal on or before March 19, 2009.
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